On the other hand, a substantive concept of an equality of opportunities requires positive steps to be taken to ensure all persons have a “genuinely equal chance of satisfying the criteria for access to a particular social good”.[19] To achieve such equality, positive action, as a form of unequal treatment, is required to compensate for disadvantages.[20]
B. Equality of outcomes
On this higher plane of substantive equality, the emphasis is on an equality of eventual results. The focus on results may be used in different ways.
The use of the concept may focus on the impact of equal treatment on the individual.[21] Fredman presents the example of a ban on head coverings prohibiting an individual Sikh schoolboy from donning his turban in school.[22] The removal of the ban, in achieving an equality of outcomes, would only have a limited result on an individual Sikh boy.
On the other hand, another use of the concept has a prescriptive effect on a group that seeks to ensure proportionate representation in the workforce, public office or government bodies.[23] In contrast to an equality of opportunities, an equality of outcomes necessitates a greater level of unequal treatment. To achieve an equality of outcomes, affirmative action is required to overcome disadvantages, as opposed to positive action designed to compensate for disadvantages.[24] Though one may contend that such terms here are merely descriptive in nature, what is relevant here is that unequal treatment exists on a sliding scale. Unequal treatment exists up to a certain extent to provide for the desired level of substantive equality.
C. A multi-dimensional approach to substantive equality
Fredman identifies four different overlapping aims of substantive equality in her multi-dimensional approach to equality.[25] First, the aim of encouraging social and political involvement in society is expressed as the participative dimension of equality.[26] Secondly, the transformative dimension seeks to accommodate difference and achieve structural change.[27] The redistributive dimension aims to redress socio-economic disadvantages associated with certain groups.[28] These three dimensions will be further discussed, in relation to constitutional institutions and safeguards protecting Singapore’s minorities, in the next section. A separate dimension of recognition and respect of dignity relates to a “leveling down” effect that is not appropriate for analysing positive discrimination.[29]
A multi-dimensional approach is useful as it facilitates the resolution of difficult dilemmas in a society’s pursuit of substantive equality.[30] For example, the extent to which differences should be accommodated under the transformative dimension must be determined in relation to the recognition dimension. Cultural practices and differences that undermine the equal recognition and respect of dignity cannot be accommodated.[31] This multi-dimensional framework enables government to discuss how best to balance the different aims of substantive equality. It is to Singapore’s supposed aims of achieving substantive equality that I now turn to.
IV. Constitutional institutions safeguarding minorities assessed within a theoretical framework of substantive equality
Once the unequal constitutional treatment of minorities in Singapore is put through the aforementioned multi-dimensional analysis, it becomes clear that the aim of such unequal treatment is not to achieve substantive equality. The unequal treatment of constitutional minorities cannot be perfectly situated within the theoretical framework of substantive equality. Of the three dimensions of substantive equality, the redistributive dimension does not find its place as a justification for the unequal constitutional treatment of minorities in Singapore.
A. The participative dimension: the PCMR and GRC scheme
The PCMR and the GRC scheme are forms of unequal treatment geared towards achieving a participative dimension of substantive equality.
(1) The PCMR
As an extra-Parliamentary body, the PCMR may prevent bills containing a “differentiating measure”[32] from being passed in Parliament.[33] Despite having the potential to affect the outcome and results of bills that are disadvantageous or prejudicial to minority groups, the efficacy of the PCMR is unclear.[34] In particular, the PCMR has yet to release an adverse report identifying a differentiating measure.
It is submitted that the PCMR is merely a reactionary institution designed to achieve a limited participative equality of opportunities. Though selected members of minority groups are given an opportunity to prevent discriminatory bills from being passed by a simple majority, this may be circumvented by a two-thirds majority.[35] In this sense, the participative equality of opportunities achieved is merely procedural in nature. In substance, the PCMR does not seem to guarantee a level playing field.
(2) The GRC scheme
The raison d'état for the introduction of the GRC scheme in 1988 was to ensure minority representation in Parliament.[36] The result of the 2011 Parliamentary Elections does seem to indicate that such an outcome has been achieved. The Non-Chinese electorate, 25.9%[37] of Singaporean residents, are represented by 27.7%[38] of elected Members of Parliament (“MPs”).[39]
In this sense, a substantive equality of outcomes is achieved by the GRC scheme. Art 39A(3), in referring to the inconsistency of the scheme with Art 12, lends support to such a claim. As much as the GRC scheme appears to offend the principle of formal equality under Art 12, substantive equality is achieved through prescriptive affirmative actions policies that guarantee the outcome of minority representation. This substantive equality of outcomes is participative in nature.
A participative dimension of substantive equality is also observed in the two-stage eligibility criteria for running as a minority candidate.[40] Members of a minority community desiring to be a candidate are to first identify with a minority group of their choice. A Community Committee, comprising of members of the identified minority group, is then assembled by the PCMR to decide whether the prospective candidate belong to that particular community.[41] The President of the PCMR is to appoint members to the Community Committee after consulting such organisation of the minority community as the PCMR thinks fit.[42] Rather than spelling out essentialist racial classifications for eligibility, members of a minority group are socially and politically involved at self-identification and in a Community Committee.[43] Therefore, a participative dimension of substantive equality is achieved not only at the ballot box, but also at the stage at which the Community Committee is selected.
B. Singapore multiculturalism and the transformative dimension of substantive equality
The transformative dimension seeks to remove the detriment attached to differences while accommodating those differences, and celebrating diverse identities within community.[44] The notion of accommodating differences through structural change in Singapore is achieved through the concept of a common and separate domain.[45] While minority groups seek to protect their own interests and unique cultures, a common Singaporean identity is also cultivated in a shared space. This transformative aspect has been described as “communitarian-type” or multi-cultural accommodation.[46] The transformative dimension is best described by Prime Minister Goh Chok Tong: The different communities are “mosaics which form a harmonious whole, with each piece retaining its own colour and vibrancy” in terms of their own language and culture.[47]
Thus, Art 152(1), as a form of unequal treatment, imposes a duty on the Government to care for the interests of racial and religious minorities. 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. In effect, such quotas clearly are geared towards a redistributive equality of outcomes along racial lines.[55] This is in contrast to the Singapore Government’s rejection of such an extent of unequal treatment. The concept of a redistributive dimension of equality, reflected in the bumiputra policy, offends the Singapore’s policy of meritocracy.[56]
Socio-economic positions are not set aside for Malays under Art 152. As opposed to reserving university places for Malays, Singapore seeks to level the playing field by waiving university fees instead.[57] At most, only a redistributive equality of opportunities is achieved. Even so, such a scheme does not entirely discriminate on the basis of race as a merits-based means testing for the scheme was adopted in 1989.[58]
The policy of meritocracy is well-entrenched in Singapore. In proposing the idea of ensuring more “Malay icons of success” as roles models for the community during Parliamentary debates, K. Shanmugam cautioned that he was being “mildly heretical” and observed that meritocracy was practiced “sometimes almost brutally”.[59] Most notably, his proposition for more unequal treatment was based on the psychological boost, and not the redistributive effect it would have on minority groups.[60] His comments seem to suggest that he was acutely aware of the tension between meritocracy and the redistributive dimension of substantive equality.
V. The basis of unequal constitutional treatment in Singapore
Having established that the redistributive dimension of substantive equality finds no place in the unequal constitutional treatment of minorities in Singapore, the true basis of unequal constitutional treatment may be grounded in our historical past, present-day policies and future aspirations.
A. Historical past
Singapore’s duty-based approach was agreed upon as part of a constitutional bargain to cede governance to a local administration in 1958.[61] Arts 152 and 153 trace their roots to the Preamble of the 1958 Order in Council for Singapore.[62] The document reflected the views of the British colonial rulers on the issue of minority protection. The duty-based policy approach was preferred over a rights-based legal approach.[63] Hence, the fledgling nation did not have to straddle the “uncertain frontier between policy and law”[64] in deciding how to establish unequal treatment to protect racial and religious minorities.
B. Modern-day judicious balancing
The duty-based policy approach has been criticised as being a weak form of minority protection as it rests on the diligence of the ruling Government.[65] Nonetheless, the advantages of such a system are apparent. Such a judicious balancing approach allows for the government to tailor unequal treatment to suit the contemporary context.[66] As unequal treatment exists in different settings and for different reasons, it must be formulated to suit the scene.[67] The Government has the onus to ensure that unequal treatment is proportionate to the legitimate objective.[68]
Thus, the Government chose to resolve the tudung controversy through non-adversarial persuasion and conciliation. The AMLA, as another layer of protection stemming from Arts 152 and 153, is found in ordinary statute. Additionally, the clearest form of entrenched substantive equality, the GRC scheme, is firmly entrenched in the Constitution. The judicious balancing approach affords the Government the flexibility to find the right balance in the unequal constitutional treatment of minorities.
The current attitude of multicultural meritocracy is unable to accommodate the redistributive dimension of substantive equality. Although the participative and structural dimensions are achieved to a certain extent, it is submitted that the concept of substantive equality obscures the true nature of unequal constitutional treatment.
Any moral or legal argument can be framed in the form of an argument for equality.[69] The true nature of unequal constitutional treatment is obscured by the fallacy of equality existing as an independent explanatory norm.[70] It is submitted that the unequal treatment cannot be justified solely on the basis of substantive equality. Instead, one must assess such assertions in light of the policies of multiculturalism and meritocracy in Singapore.
C. Future aspirations of substantive equality
The unequal constitutional treatment of minorities achieves certain dimensions of substantive equality. Despite this, substantive equality is not an avowed aim of unequal treatment. Substantive equality is only an aspiration for a nation in transition and there is a practical realisation that we may never get there.[71]
An assertion that unequal constitutional treatment of minorities must exist to the extent necessary to achieve substantive equality is misplaced in Singapore’s context. Unequal treatment should exist to the extent necessary to preserve the twin pillars of multiculturalism and meritocracy.
I declare that I have abided by the SMU’s Code of Academic Integrity.
[1] Constitution of the Republic of Singapore (1999 Reprint) Part VII
[2] Constitution of the Republic of Singapore (1999 Reprint) Art 39A
[3] Sandra Fredman, Discrimination Law (Oxford University Press, 2nd Ed, 2011) at pp 25—33.
[4] Matadeen v Pointu [1999] 1 A.C. 98 at 109. Lord Hoffmann also described formal equality as “one of the building blocks of democracy [that] necessarily permeates any democratic constitution”.
[5] Elisa Holmes, “Anti-Discrimination Rights Without Equality” (2005) 68(2) Modern Law Review 175 at 179.
[6] Ibid. Holmes eschews the label of “substantive” equality and establishes forms of egalitarian principles instead.
[7] Sandra Fredman, Discrimination Law, supra n 3, at p 13.
[8] Sandra Fredman, “Providing Equality: Substantive Equality and The Positive Duty to Provide” (2005) 21 SAJHR 163 at 166—167.
[9] Jaclyn Ling-Chien Neo, “The Protection of Minorities and the Constitution: A Judicious Balance?” in Thio Li-ann & Kevin YL Tan, eds., Evolution of a Revolution: Forty Years of the Singapore Constitution (New York: Routledge-Cavendish, 2009) 234 at p 236.
[10] Kevin Y L Tan & Thio Li-ann, Constitutional Law in Malaysia and Singapore (LexisNexis, 3rd Ed, 2010) at p 875.
[11] Report of the Constitutional Commission Singapore 1966 at para. 11.
[12] Supra n 9.
[13] Id, at 241.
[14] United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities, UN Doc A/47/49 (1992).
[15] Supra n 13.
[16] Jaclyn Ling-Chien Neo, “The Protection of Minorities and the Constitution: A Judicious Balance?”, supra n 9.
[17] Catherine Barnard and Bob Hepple, ‘Substantive Equality’, (2000) 59 CLJ 562 at 564—567. At 567, two other approaches to substantive equality are discussed: treating “equality as auxiliary to substantive rights” and a “broad value driven approach” that “emphasises the dignity, autonomy and worth of every individual”. The former approach is exemplified by Article 14 of the European Convention on Human Rights and the latter by the Constitutions of several European Union member states.
[18] Sandra Fredman, Discrimination Law, supra n 3, at p 18.
[19] Id, at p 19.
[20] Catherine Barnard and Bob Hepple, ‘Substantive Equality’, supra n 17, at 566.
[21] Sandra Fredman, Discrimination Law, supra n 3, at p 14.
[22] Ibid.
[23] Id, at pp 15–16. Fredman identifies a separate but weaker use as one having a diagnostic effect on a group.
[24] Catherine Barnard and Bob Hepple, ‘Substantive Equality’, supra n 17, at 565.
[25] Sandra Fredman, Discrimination Law, supra n 3, at pp 25—33.
[26] Id, at pp 31—33.
[27] Id, at pp 30—31. See also Sandra Fredman, “Providing Equality: Substantive Equality and The Positive Duty to Provide”, supra n 8, at 167 where the transformative dimension is described as entailing “positive affirmation and celebration of identity within community”.
[28] Id, at pp 26—28.
[29] Id, at pp 28—30.The notion of dignity is the often relied on as a basic foundation for a substantive core to the concept of equality. As a central concept of equality, the recognition dimension operates to prevent a “levelling down” effect that may occur under a system of formal equality. A claim for equal and consistent treatment may be satisfied by a “levelling down” effect that deprives all of a particular benefit or right. The unequal constitutional treatment of minorities in Singapore involves positive discrimination and has a “levelling up” effect instead.
[30] Id, at p 31.
[31] Ibid.
[32] Constitution of the Republic of Singapore (1999 Reprint) Art 68. A "differentiating measure" means any measure which is, or is likely in its practical application to be, disadvantageous to persons of any racial or religious community and not equally disadvantageous to persons of other such communities, either directly by prejudicing persons of that community or indirectly by giving advantage to persons of another community.
[33] Constitution of the Republic of Singapore (1999 Reprint) Art 76.
[34] Tan Seow Han, “The Constitution as ‘Comforter’?- An Assessment of the Safeguards in Singapore’s Constitutional System” [1995] 16 SLR 104 at 126–129.
[35] Constitution of the Republic of Singapore (1999 Reprint) Art 78(6)(c).
[36] Constitution of the Republic of Singapore (1999 Reprint) Art 39A(1).
[37] Department of Statistics, Monthly Digest of Statistics Singapore, September 2011, Singapore Residents by Age Group, Ethnic Group and Sex, End June 2010. <http://www.singstat.gov.sg/pubn/reference/mdssep11.pdf> (accessed 1 Oct 2011)
[38] Figure calculated based on information available at Singapore Parliament’s website, <> (accessed 7 October 2011).
[39] Malay residents (13.4%) are represented by 15.4% of MPs, Indians residents (9.2%) are represented by 11.5% of MPs and other residents (3.3%) are represented by 2.3% of MPs.
[40] Constitution of the Republic of Singapore (1999 Reprint) Art 39A(4).
[41] Parliamentary Elections Act (Cap 218, 2010 Rev Ed) s 27C(1).
[42] Parliamentary Elections Act (Cap 218, 2010 Rev Ed) s 27C(2).
[43] Victor V. Ramraj, “Multiculturalism and Accommodative Liberalism Revisited” [2005] SJLS 159 at 167.
[44] Sandra Fredman, Discrimination Law, supra n 3, at p 30; Sandra Fredman, “Providing Equality: Substantive Equality and The Positive Duty to Provide”, supra n 6, at 167.
[45] Thio Li-ann, “Recent Constitutional Developments: Of Shadows and Whips, Race, Rifts and Rights, Terror and Tudungs, Women and Wrongs” [2002] SJLS 328 at 360.
[46] C.L. Lim, “Race, Multi-cultural Accommodation and the Constitutions of Singapore and Malaysia” [2004] SJLS 117 at 134.
[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).