Proportionality in Interpreting Constitutions: A Comparison between Canada, the United Kingdom and Singapore and its Implications for Vietnam

Few rights that are guaranteed by constitutions and bills of rights are expressed to be absolute. In many jurisdictions, the legislature is permitted to impose restrictions on rights for specified reasons and under particular conditions. However, constitutional or bill of rights text often do not ex...

Full description

Saved in:
Bibliographic Details
Main Author: LEE, Jack Tsen-Ta
Format: text
Language:English
Published: Institutional Knowledge at Singapore Management University 2012
Subjects:
Online Access:https://ink.library.smu.edu.sg/sol_research/1596
https://ink.library.smu.edu.sg/context/sol_research/article/3548/viewcontent/ProportionalityInterpretingConstitutions_2012.pdf
Tags: Add Tag
No Tags, Be the first to tag this record!
Institution: Singapore Management University
Language: English
id sg-smu-ink.sol_research-3548
record_format dspace
spelling sg-smu-ink.sol_research-35482016-04-18T07:40:05Z Proportionality in Interpreting Constitutions: A Comparison between Canada, the United Kingdom and Singapore and its Implications for Vietnam LEE, Jack Tsen-Ta Few rights that are guaranteed by constitutions and bills of rights are expressed to be absolute. In many jurisdictions, the legislature is permitted to impose restrictions on rights for specified reasons and under particular conditions. However, constitutional or bill of rights text often do not expressly indicate how the courts should determine that applicants’ rights have been legitimately restricted. To this end, courts in jurisdictions such as Canada and the United Kingdom have adopted the European doctrine of proportionality. Essentially, this requires them to balance opposing types of public interests – the interest sought to be protected by the rights in question, and other public interests such as national security, the protection of people’s reputation, public order, and so on. A proportionality analysis also requires courts to consider whether limitations on rights imposed by executive or legislative action have a rational relationship with the object of the action, and, if so, whether the limitations restrict rights as little as possible. On the other hand, when interpreting the fundamental liberties in the Singapore Constitution, courts presently do not engage in a proportionality analysis. This paper considers how the rejection of proportionality has affected the rights to freedom of speech and assembly, and argues that the application of proportionality in Singapore is not only desirable but necessary if the Constitution is to be regarded as guaranteeing fundamental liberties instead of merely setting out privileges that may be abridged at will by the Government. It is hoped there are lessons in Singapore’s experience that Vietnam can learn from. 2012-10-01T07:00:00Z text application/pdf https://ink.library.smu.edu.sg/sol_research/1596 https://ink.library.smu.edu.sg/context/sol_research/article/3548/viewcontent/ProportionalityInterpretingConstitutions_2012.pdf http://creativecommons.org/licenses/by-nc-nd/4.0/ Research Collection Yong Pung How School Of Law eng Institutional Knowledge at Singapore Management University Canada constitutional interpretation fundamental liberties human rights proportionality Singapore United Kingdom Vietnam Asian Studies Constitutional Law
institution Singapore Management University
building SMU Libraries
continent Asia
country Singapore
Singapore
content_provider SMU Libraries
collection InK@SMU
language English
topic Canada
constitutional interpretation
fundamental liberties
human rights
proportionality
Singapore
United Kingdom
Vietnam
Asian Studies
Constitutional Law
spellingShingle Canada
constitutional interpretation
fundamental liberties
human rights
proportionality
Singapore
United Kingdom
Vietnam
Asian Studies
Constitutional Law
LEE, Jack Tsen-Ta
Proportionality in Interpreting Constitutions: A Comparison between Canada, the United Kingdom and Singapore and its Implications for Vietnam
description Few rights that are guaranteed by constitutions and bills of rights are expressed to be absolute. In many jurisdictions, the legislature is permitted to impose restrictions on rights for specified reasons and under particular conditions. However, constitutional or bill of rights text often do not expressly indicate how the courts should determine that applicants’ rights have been legitimately restricted. To this end, courts in jurisdictions such as Canada and the United Kingdom have adopted the European doctrine of proportionality. Essentially, this requires them to balance opposing types of public interests – the interest sought to be protected by the rights in question, and other public interests such as national security, the protection of people’s reputation, public order, and so on. A proportionality analysis also requires courts to consider whether limitations on rights imposed by executive or legislative action have a rational relationship with the object of the action, and, if so, whether the limitations restrict rights as little as possible. On the other hand, when interpreting the fundamental liberties in the Singapore Constitution, courts presently do not engage in a proportionality analysis. This paper considers how the rejection of proportionality has affected the rights to freedom of speech and assembly, and argues that the application of proportionality in Singapore is not only desirable but necessary if the Constitution is to be regarded as guaranteeing fundamental liberties instead of merely setting out privileges that may be abridged at will by the Government. It is hoped there are lessons in Singapore’s experience that Vietnam can learn from.
format text
author LEE, Jack Tsen-Ta
author_facet LEE, Jack Tsen-Ta
author_sort LEE, Jack Tsen-Ta
title Proportionality in Interpreting Constitutions: A Comparison between Canada, the United Kingdom and Singapore and its Implications for Vietnam
title_short Proportionality in Interpreting Constitutions: A Comparison between Canada, the United Kingdom and Singapore and its Implications for Vietnam
title_full Proportionality in Interpreting Constitutions: A Comparison between Canada, the United Kingdom and Singapore and its Implications for Vietnam
title_fullStr Proportionality in Interpreting Constitutions: A Comparison between Canada, the United Kingdom and Singapore and its Implications for Vietnam
title_full_unstemmed Proportionality in Interpreting Constitutions: A Comparison between Canada, the United Kingdom and Singapore and its Implications for Vietnam
title_sort proportionality in interpreting constitutions: a comparison between canada, the united kingdom and singapore and its implications for vietnam
publisher Institutional Knowledge at Singapore Management University
publishDate 2012
url https://ink.library.smu.edu.sg/sol_research/1596
https://ink.library.smu.edu.sg/context/sol_research/article/3548/viewcontent/ProportionalityInterpretingConstitutions_2012.pdf
_version_ 1772829487820439552