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IS THE FOUR WALLS DOCTRINE QUEITLY LOSING ITS RELEVANCE IN SINGAPORES

CONSTITUTIONAL JURISPRUDENCE?

Constitutional and Administrative Law individual research paper, prepared for Professor Tham Lijing by Ong Sim.

Introduction: Behind the Four W alls

The four walls doctrine (Four Walls) in Singapore transcends a blunt rejection of foreign cases as
persuasive authority in Singapores constitutional jurisprudence. It alludes to the underlying concern
that adopting foreign cases that were decided on a different set of social and economic
considerations would lead to a misalignment of solution and issue. This local conditions concern
first surfaced in AG v Wain Barry J1 and was later affirmed in Chan Hiang Leng Colin v PP2 where the
Court held that [t]he Constitution is primarily to be interpreted within its own four walls and not in
the light of analogies drawn from other countries3 given the markedly different local and foreign
conditions.4 While the word primarily suggests the possibility of adopting foreign legal principles
in the exceptional case where foreign and local conditions are similar, the latter phrase and not in
the light of analogies ... from other countries denies this exception. The original case5 that
propounded this concept reinforces this interpretation. It held that, it is in the end the wording of
the Constitution itself that is to be interpreted ... this wording can never be overridden by the
extraneous principles of other constitutions which are not explicitly incorporated in the formulae
that have been chosen as the frame of this Constitution.6 The natural consequence is that Four
Walls rejects the use of all foreign constitutional cases.

The uneasiness of subjecting the Constitution to even the slightest foreign influence stems from the
need for an autochthonous legal system sensitive to the needs and mores of the society... Only
thus can the society concerned develop and even flourish.7 As the broader pursuit of autochthony

[1991] 1 SLR(R) 85 at [36]-[37].


[1994] 3 SLR(R) 209 (Colin Chan).
3
Ibid, citing with affirmation Government of the State of Kelantan v Government of the Federation of Malaya [1963]
MLJ 355 at [51].
4
Ibid, at [53].
5
Adegbenro v Akintola [1963] AC 614.
6
Ibid, at 631-632.
7
Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board [2005] 4 SLR(R) 604 at [27].
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informs constitutional interpretation, it becomes clear that Four Walls was introduced as a means of
championing constitutional autochthony.

To this end, Four Walls in Singapore from when it was first expounded in Colin Chan to recent
times8 appears to have quietly lost its relevance as a method of circumventing foreign cases that
were deemed inappropriate under local conditions. However, since true adherence to Four Walls
requires a blanket ban over all foreign cases rather than a selection of which, it is submitted that
courts have never truly abided by it in practice. Thus, Four Walls was in fact never relevant to
Singapores constitutional jurisprudence.

The first part of this paper seeks to establish that Four Walls has never been relevant by scrutinising
it as a prescription for autochthony. The discrepancy between the purported approach and actual
practice demonstrates that Four Walls has never actually been applied in practice. It also prompts
the proposition that Four Walls is impossible to apply, which would establish that it cannot be
relevant in Singapores constitutional jurisprudence. The second part attempts to reconcile this
discrepancy by acknowledging that the courts have previously employed Four Walls, albeit loosely,
to circumvent unfavourable foreign cases without addressing their merits, giving it the appearance
of being relevant. However, with time, courts turned their efforts to refine the underlying local
conditions principle and eventually surfaced a fatal distinction between the principle and Four
Walls. The continued adherence to the local conditions principle then necessarily precludes
recourse to Four Walls, causing the latter to quietly lose its semblance of relevance.

I.

The irrelevance of Four W alls in practice

A.

Four Walls as an inappropriate prescription for constitutional autochthony

As Four Walls is an inappropriate prescription for autochthony, Singapore courts purport to uphold
Four Walls but have not actually conformed to it. Hence, Four Walls has never been relevant in
Singapore in practice.

For comparison purposes, recent cases refer to decisions made in 2005 onwards.

There is a fine line between denial of the legitimacy of any use of foreign law and
repeated denial of its relevance on the grounds of local difference, pursuant to a
comparative methodology that favours particularism. ... The four walls doctrine, even
in its heyday, clearly was an example of the latter rather than the former.9

For instance, the High Court in Colin Chan introduced Four Walls into Singapores constitutional
jurisprudence. Yet, it relied on Australian10 and Indian11 cases to bolster its decision that the
constitutional right to freedom of religion was not an absolute and unqualified right.12 The extent of
this contradiction is epitomised by Peter Williams Nappalli v ITE.13 The Court there endorsed Four
Walls yet overlooked it in the same paragraph when it cited two US cases14 as a prelude to
subsequent foreign cases which supported its decision that there was a constitutional right to
freedom of speech and religion but no constitutional right to be a teacher. Thus, a person who
refuses to work on such terms as required by his post for religious reasons is at liberty to retain his
beliefs and go elsewhere. However, he cannot expect his employer to make concessions for
breaches of contract caused by his religious beliefs.15

Such blatant discrepancies between the purported approach and practice hint at the fact that Four
Walls is not a logical consequence of the local conditions concern, and in turn, an inappropriate
prescription for constitutional autochthony. At the heart of autochthony is a legal system tailored to
the local conditions. The origins of its principles are irrelevant so long as these principles are
adapted to craft a bespoke local legal system. Hence the use of foreign cases does not necessarily
impede the pursuit of autochthony. Rather, using a foreign case when the local conditions require
otherwise does. A blanket ban fails to recognise a foreign cases potential in developing the local
law. Courts implicitly acknowledge this when they ultimately deviate from Four Walls in practice
despite formally endorsing it. Since courts have never applied Four Walls in practice, it has never
been relevant in Singapore.

Rosalind Dixon & Tim Ginsburg, Comparative Constitutional Law in Asia (Edward Elgar Publishing, 2014) at p 89.
Adelaide Company of Jehovahs Witnesses Inc v Commonwealth of Australia (1943) 67 CLR 116.
11
Commissioner, HRE v L T Swamiar AIR 1954 SC 282.
12
Colin Chan, supra n 2 at [63]-[64].
13
[1998] SGHC 351 (Peter Williams).
14
McAuliffe v New Bedford 155 Mass 216 (1892); Adler v Board of Education 342 US 589 (1952).
15
Peter Williams, supra n 13 at [45] and [49].
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B.

The impossibility of Four Walls

The discrepancy between the purported approach and practice also suggests that Four Walls is
impossible to apply and therefore, cannot be relevant in practice. A critical analysis of what
autochthony requires and the courts preferred rhetoric establishes this impossibility.

Before embarking on the pursuit for autochthony, the boundaries of what constitutes local
conditions must first be established. It is only through a comparison with foreign conditions that
one can identify the hidden assumptions in ones own culture or discern uniquely local conditions.
The heightened awareness then enables a more informed decision on whether a foreign principle is
suitable to the local conditions. This is the crux of the dialogical use16 of foreign cases alluded to by
the particularist comparative method in the quote above.

10

The High Court in Chee Siok Chin v MHA17 exemplifies this in its comparison of the similar
constitutional right to freedom of assembly in Singapore18 and India.19 The Singaporean provision
employs words20 that confer a narrower scope of judicial review of legislation that fetter the right
than the Indian equivalent.21 However, Indian cases reveal that Indian courts have been most
reluctant to exercise their jurisdiction,22 which surfaces the underlying assumption that Singaporean
courts should all the more exercise extreme caution when seeking to determine whether a
particular piece of legislation is invalid. Through this comparative exercise, the Court was
persuaded to uphold Parliaments much wider legislative remit.23

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A strict adherence to Four Walls, which rejects the use of and reference to foreign cases, will
completely preclude this comparative process. Contrary to its purport, Four Walls undermines the
foremost step in achieving constitutional autochthony.

Sujit Choudry, Globalisation in Search of Justification: Toward a Theory of Comparative Constitutional


Interpretation (1999) Ind LJ 819 at 835-836.
17
Chee Siok Chin v Minister for Home Affairs and another [2006] 1 SLR(R) 582 (Chee Siok Chin).
18
Constitution of the Republic of Singapore (1999 Reprint) Art 14(2).
19
Constitution of India Art 19(3).
20
such restrictions as it considers necessary or expedient in the interest of the security of Singapore or any part
thereof or public order, supra n 18.
21
imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the
exercise of the right conferred, supra n 19.
22
Chee Siok Chin, supra n 17 at [48].
23
Ibid, at [50].
16

12

In pursuing autochthony, the limited local constitutional case law leaves many lacunas for counsels
to address by proposing autochthonous principles. The nature of the adversarial system compels
counsels to appeal to authority in their submissions. Hence, they naturally look beyond Singapores
jurisdictions for endorsement. In 1994, the appellants counsel in Jabar bin Kadermastan v PP24 relied
on a Privy Council appeal from Jamaica25 in his submission that it was cruel and inhuman punishment
to carry out an execution after a prolonged delay. Even after the pronouncement of Four Walls, the
plaintiffs counsel in Peter Williams cited US, Canadian and Australian cases in his submissions.26

13

Judiciaries do not work in hermitically sealed environments, immune from external influences.27
They too, rely on foreign principles. In Taw Cheng Kong v PP,28 the High Court relied on foreign
authorities29 for the established approach abroad to formulate a local test of constitutionality for
discriminatory laws.30 These cases show that until Singapore has established local constitutional
principles that can be developed independently, reliance on foreign cases is inevitable in the pursuit
of constitutional autochthony.

14

The local courts proclivity to refer to the genealogy of a constitutional text, as seen in Taw Cheng
Kong,31 Yong Vui Kong v AG32 and Lim Meng Suang v AG,33 is another facet of the impossibility of
applying Four Walls. As Singapores Constitution is largely derived from foreign jurisdictions, courts
inevitably make reference to those constitutions and, in most cases, foreign cases that interpret
them. For instance, the Court in Chee Siok Chin traced the history of the Singapores Constitution
back to the Reid Commission Report 195734 to establish that the constitutional right to assembly

[1995] 1 SLR(R) 326 (Jabar) at [8].


Pratt v Attorney General for Jamaica [1994] 2 AC 1.
26
Peter Williams, supra n 13 at [40].
27
Thio Li-Ann, Beyond the Four Walls in an Age of Transnational Judicial Conversations: Civil Liberties, Rights
Theories and Constitutional Adjudication in Malaysia and Singapore (2006) 19 Colum. J. Asian Law 428 at 457.
28
[1998] 1 SLR(R) 78 (Taw Cheng Kong).
29
Shri Ram Krishna Dalmia v Shri Justice S R Tendolkar AIR (45) 1958 SC 538; Datuk Haji Harun bin Haji Idris v Public
Prosecutor [1977] 2 MLJ 155; Malaysian Bar v Government of Malaysia [1987] 2 MLJ 165; Government of Malaysia v V
R Menon [1990] 1 MLJ 277.
30
Taw Cheng Kong, supra n 27 at [32]-[33].
31
Taw Cheng Kong, supra n 27 at [6]-[10].
32
[2011] 2 SLR 1189 (Yong Vui Kong) at [27].
33
[2013] 3 SLR 118 at [71].
34
Report of the Federation of Malaya Constitutional Commission 1957.
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may be restricted by legislation.35 However, the Court went a step further than relying on a foreign
case that interpreted its own constitution. It relied on an Indian academic36 to buttress its
interpretation of these restrictions to include not only legislations maintaing the status quo but
prophylactic legislation as well.37 The proposition that reference to foreign principles, not just cases,
is inevitable is reinforced, further emphasising the impossibility of Four Walls.

15

Because its application is impossible, Four Walls cannot logically be relevant in Singapores
constitutional jurisprudence.

II.

16

The apparent relevance of Four Walls

Despite the impossible application of Four Walls, the doctrine has admittedly been employed,
albeit fallaciously, to dismiss conflicting foreign cases.

17

It is submitted that Four Walls appears to be relevant because courts once used it arbitrarily as a
convenient tool to circumvent unfavourable foreign cases that were onerous to dismiss. However,
with the development of local constitutional jurisprudence, courts have directed their efforts to
refine the underlying local conditions principle, eventually surfacing a fatal discrepancy between
the local conditions principle and Four Walls.38 As courts continue to uphold the local
conditions principle, recourse to Four Walls is precluded. Four Walls thus quietly loses its
semblance of relevance.

A.

18

The appearance of being relevant

The promulgation of Four Walls39 provided an alternative recourse for courts to dismiss unfavourable
foreign cases without addressing their merits. An example is Peter Williams, in which the Court
simply employed Four Walls to dismiss the foreign cases submitted by the plaintiffs counsel without

35
36
37
38
39

Chee Siok Chin, supra n 17 at [51].


Mahendra P Singh, V N Shuklas Constitution of India (Eastern Book Company, 9th Ed, 1996) at p 113.
Chee Siok Chin, supra n 17 at [50].
As alluded to at para 7 of the main text above.
Colin Chan, supra n 2 at [53].

even identifying them.40 However, where courts were confident of dismissing foreign cases on their
substantive merits, they did so without resorting to Four Walls. In Rajeevan Edakalavan v PP,41 the
Court explained the differences between the constitutions of Trinidad and Tobago and that of
Singapore to justify dismissing the unfavourable foreign cases. Four Walls was not mentioned. The
perfunctory and arbitrary judicial endorsements of Four Walls indicate that its relevance, if any, was
only as a label to a convenient tool used to dismiss foreign cases and not as the guiding principle it
purports to be.

19

This semblance of, rather than actual, relevance is emphasised by the fact that Four Walls has only
been endorsed by the High Court and not the Court of Appeal. Further, when it is against their
favour, courts do not even raise Four Walls in attempt to address the inconsistency. It is simply not
mentioned, a clear sign that it is treated not as a guiding principle, but a convenient tool. The Court
of Appeal in PP v Taw Cheng Kong42 demonstrates this when cited a Privy Council appeal,43 contrary
to Four Walls, to reinforce its decision to uphold the constitutionality of extraterritorial laws. There
was no mention of Four Walls despite the lower courts explicit endorsement.44

B.

20

Four Walls quietly losing its semblance of relevance

Even in the cases endorsing Four Walls, courts acknowledge that it is the local conditions
rationale that should guide the treatment of foreign constitutional cases.45 With time, courts focused
their efforts on refining the local conditions principle to develop a sound local constitutional
jurisprudence instead of arbitrarily using Four Walls.

21

After the turn of the century, courts made an effort to explain the applicability of the foreign
decision to local conditions and more importantly, in the specific context of the present case. In
2005, the Court in Nyugen Tuong Van v PP46 did not only justify its rejection of the foreign case,

40
41
42
43
44
45
46

Peter Williams, supra n 17 at [40].


[1998] 1 SLR(R) 10 at [15].
[1998] 2 SLR(R) 489.
Somchai Liangsiriprasert v Government of the United States of America [1991] 1 AC 225.
Taw Cheng Kong, supra n 27 at [78]-[79].
Colin Chan, supra n 2 at [53]; Peter Williams, supra n 13 at [40]-[42].
[2005] 1 SLR(R) 103 (Nguyen).
6

Reyes v The Queen,47 by stating that the foreign case was decided on a different constitution. It also
explained that Reyes held the mandatory death penalty by shooting to be unconstitutional against
the backdrop of a plethora of international arrangements for the protection of human rights.48 The
Court then cited a US case49 that en banc decided that hanging did not amount to cruel and
inhuman treatment or punishment.50 Given that there was no international consensus that the
domestic mandatory death penalty by hanging was cruel and inhuman treatment and [a]ny
customary international law rule must be clearly and firmly established before its adoption by the
courts,51 it was inappropriate to adopt Reyes as authority. This extent of justification is a staggering
improvement from the prior lip service paid to the local conditions principles and the
presumption that foreign and local conditions are irreconcilable.

22

As the law develops, courts employ the local conditions rationale to justify not only their rejection,
but also acceptance of foreign cases as authority as well. In 2011, the Court in Yong Vui Kong relied
on an Indian Supreme Court case52 on grounds that it upheld the same guiding principle53 laid down
in an earlier local case.54 Hence it was appropriate to adopt its explication of a locally approved
principle in the context of constitutional presidential clemency power.55 Four Walls, being a blanket
ban on all foreign cases, fails to recognise that the local conditions principle can justify the
acceptance of a foreign case. As courts continue to affirm the local conditions principle, recourse
to the contradictory Four Walls is necessarily precluded.

23

Despite the prevalence of its underlying local conditions principle, Four Walls becomes an
abandoned doctrine that has quietly lost even its appearance of being relevant.

[2002] 2 AC 235.
Nguyen, supra n 46 at [85].
49
Campbell v Wood 18 F 3d 662 (1994).
50
Nguyen, supra n 46 at [93].
51
Nguyen, supra n 46 at [88].
52
Maru Ram v Union of India (1981) 1 SCC 107.
53
All power has legal limits; no legal power including a constitutional power... is beyond the reach of the
supervisory jurisdiction of the courts if it is exercised beyond its legal limits: Yong Vui Kong, supra n 27 at [77].
54
Chng Suan Tze v Minister for Home Affairs [1988] 2 SLR(R) 525 at [86].
55
Yong Vui Kong, supra n 27 at [77].
47
48

III. Conclusion

24

Four Walls as a blanket ban on all foreign constitutional cases has never been relevant in Singapore.
Despite the local courts formal endorsement of the doctrine, they have never applied it in practice.
More fundamentally, Four Walls cannot be relevant because it is impossible to apply.

25

Nevertheless, Four Walls appears to be relevant as courts formally employed it as a tool to dismiss
unfavorable foreign cases. However, the inconsistent application and lack-of Court of Appeal
endorsement reveal its semblance of, rather than actual, relevance.

26

As courts direct their efforts to develop the underlying local conditions principle behind Four
Walls, it becomes clear that Four Walls is an untenable doctrine. In recent cases, courts begin to
employ the local conditions principle to justify their acceptance of foreign constitutional cases, an
approach contrary to Four Walls which causes the doctrine to quietly lose even its semblance of
relevance. What is left is a more sophisticated and consistent local constitutional jurisprudence.