The Doctrine of Severability in Constitutional Review: A Perspective from Singapore

Abstract

The Singapore Court of Appeal’s decision in Prabagaran a/l Srivijayan v Public Prosecutor represents a substantial development in Singapore’s law on the doctrine of severability in constitutional review. An examination of Prabagaran reveals rich theoretical underpinnings relating to the nature of legislative intent. The case rightly locates the crux of the severability inquiry in secondary legislative intention: in other words, the legislature’s intention, at the time a statute was enacted, as to what should happen in the event that part of the statute is later held to be unconstitutional. This approach is preferable to the approach of asking whether excision of unconstitutional parts of the legislation would leave behind something which is “substantially a different law”, an approach which can lead to the judicial frustration of legislative policy. The search for secondary legislative intent is not just a matter of speculation; Prabagaran demonstrates how it may be inferred from evidence such as the structure of legislation, legislative history, and speeches in Parliament. In addition, Prabagaran highlights the importance of applicants’ identifying precisely the object of a constitutional challenge and the exact reliefs sought.