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Constitutional Equality in Singapore. The predominant purpose of unequal treatment under the Constitution is not to achieve substantive equality, but to preserve multiculturalism and meritocracy.

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Introduction

? ? Constitutional and Administrative Law (LAW204) 2011?2012, Semester 1 Individual Research Paper Section: G2 Instructor: Assistant Prof. Jack Tsen-Ta Lee Topic Number: 4 Student Number: S89XXXXXX I declare that this research paper contains 2993 words. I. Introduction 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?),[1] the Group Representation Constituencies (?GRC?) scheme,[2] 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.[3] 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. ...read more.

Middle

Arts 152(2) recognises the special position of Malays and imposes a responsibility on the Government to protect the interests of Malays. Under Art 153, the Legislature is also under a duty to enact laws regulating the Muslim religion. One such law is the Administration of Muslim Law Act (?AMLA?)[48] that forms the statutory basis for the religious Syariah courts and the Majlis Ugama Islam Singapura, which oversees positive discrimination programmes such as the Mosque Building Fund.[49] These safeguards impose on the Government and Legislature a ?positive duty to provide? for the unequal treatment of constitutional minorities and constitute an added layer of protection for minority interests.[50] Hence, the transformative aspect of substantive equality is achieved. However, issues impacting individuals in terms of achieving an equality of outcomes may arise in Singapore?s effort to accommodate differences in a transformative dimension. The schoolgirl tudung controversy, the local equivalent of the Sikh schoolboy analogy discussed above, is one such example.[51] In this case, the ban on the Muslim headscarf was not lifted within the common domain of public schools. In contrast to the separate religious sphere of madrasahs, public schools are thought to be vital to nation building.[52] The issue did not go up to the courts but was resolved by a process of government persuasion and consultation.[53] A judicious balancing of interests, based on a policy-approach to protecting minorities, was able to accommodate difference in a transformative dimension. C. The redistributive dimension at odds with meritocracy The redistributive dimension of substantive equality offends Singapore?s policy of meritocracy. In this sense, the assertion that the unequal constitutional treatment of minorities seeks to achieve substantive equality is entirely misplaced. Unlike the Malaysian special position clause, the Singaporean scheme does not operate to achieve a redistributive dimension of substantive equality. Art 153 of the Federal Constitution of Malaysia provides for a quota system that reserves places in universities and business licences for the indigenous and native bumiputra[54] majority. ...read more.

Conclusion

[47] ?Media?s role in sealing social unity? The Straits Times (7 September 1998) [48] Administration of Muslim Law Act (Cap 3, 2009 Rev Ed) [49] Administration of Muslim Law Act (Cap 3, 2009 Rev Ed) Part V. [50] Supra n 51 at 133. [51] Thio Li-ann, ?Recent Constitutional Developments: Of Shadows and Whips, Race, Rifts and Rights, Terror and Tudungs, Women and Wrongs?, supra n 50, at 355?370. [52] Jaclyn Ling-Chien Neo, ?The Protection of Minorities and the Constitution: A Judicious Balance??, supra n 9 at p 254. [53] Id, at 244. [54] Translated literally as ?sons of the soil?. [55] Nurul Izza Idris, ?Rethinking the Value of Preferential Treatment? (2009) 15 UCLJR 45 at 59. [56] Jaclyn Ling-Chien Neo, ?The Protection of Minorities and the Constitution: A Judicious Balance??, supra n 9 at p 246. [57] Eugene Tan, ??Special Position of the Malays?: It?s a Shield, Not a Sword? The Straits Times (25 August 2009) at A18. [58] Ibid. [59] Singapore Parliamentary Debates, Official Report (20 January 2003) vol 75 at cols 2068?2070 (K. Shanmugam, MP for Sembawang GRC). [60] Ibid. [61] C.L. Lim, ?Race, Multi-cultural Accommodation and the Constitutions of Singapore and Malaysia?, supra n 51 at 131. [62] Jaclyn Ling-Chien Neo, ?The Protection of Minorities and the Constitution: A Judicious Balance??, supra n 9 at p 242. [63] Ibid. [64] Sandra Fredman, ?Providing Equality: Substantive Equality and The Positive Duty to Provide?, supra n 8, at 166. [65] Thio Li-ann, ?The Secular Trumps the Sacred: Constitutional Issues Arising From Colin Chan v Public Prosecutor? (1995) 16 Sing LR 26 at 38. [66] Jaclyn Ling-Chien Neo, ?The Protection of Minorities and the Constitution: A Judicious Balance??, supra n 9 at p 256?258. [67] Nurul Izza Idris, ?Rethinking the Value of Preferential Treatment?, supra n 58 at 60. [68] Id, at 68?69. [69] Peter Western, ?The Empty Idea of Equality?, (1995) 95 HLR 537 at 596. [70] Id, at 580?581. [71] Singapore Parliamentary Debates, Official Report (19 August 2009), vol 86 at cols 1143?1222 (Lee Kuan Yew, Minister Mentor). ...read more.

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