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Pre-departure tests for Singapore citizens returning home: possibly constitutionally tricky in theory, but not in practice

Benjamin Joshua Ong, Assistant Professor of Law, Singapore Management University

Introduction

Can a state require that its own citizens may only enter upon production of a test result showing that they are not infected with COVID-19? Albania, Greece, Australia, Samoa, India, the Netherlands, and Cyprus have taken such measures at one time or another. On 26 May 2021, Singapore’s Ministry of Health announced a similar measure:

“… All travellers entering or transiting through Singapore (including SCs [Singapore citizens] and PRs [Singapore permanent residents]), except for those who have stayed in lower-risk countries/regions throughout the last 21 days before departure for Singapore, will need to present a valid negative COVID-19 PCR test taken within 72 hours before departure for Singapore. Only then will they be allowed to board their flight or ferry to Singapore.” [emphasis removed]

There is an exception: “Singaporeans who test positive for COVID-19 while overseas and require urgent medical care in Singapore can still return to Singapore via a medevac flight or other equivalent forms of conveyance.”

The pre-departure test requirement raises several previously unexplored issues stemming from Article 13(1) of Singapore’s Constitution, which provides: “No citizen of Singapore shall be banished or excluded from Singapore.”

Legal basis for pre-departure test requirement

A couple of clarifications are in order. First, of course, Singapore has no power to forbid the act of boarding a vehicle in the territory of a foreign state. Rather, the pre-departure testing requirement takes the form of, as my colleague Eugene Tan put it and the Civil Aviation Authority of Singapore later confirmed, “a duty on the flight or ferry operator to ensure that all passengers travelling to Singapore have the necessary negative test results based on their travel histories”. (An MOH spokesperson subsequently confirmed this to me.)

Second, I have had difficulty locating a legal basis for requiring those who enter by rail or by road (at least in the case of one driving a Singapore-registered vehicle into Singapore) to take a pre-departure test. While the MOH’s announcement states that “[a]ll travellers” must take a pre-departure test, the Safe Travel Portal (a government website with information on immigration control during the pandemic)has now clarified (and an MOH spokesperson has confirmed to me) that citizens entering Singapore “by flight or ferry”, but not by road, need a pre-departure test.

Possible constitutional issues

How does the pre-departure test requirement, as applied to citizens, measure up to Article 13(1) of the Constitution? Because there is no local jurisprudence on the matter, we are in uncharted waters.

Unlike with other rights provisions, nothing in the Constitution states any grounds on which the Article 13(1) right may be limited. Therefore, the question is not whether the pre-departure test requirement is a permissible form of banishment or exclusion, but rather whether it amounts to banishment or exclusion at all.

It is arguable that preventing a citizen from entering Singapore – even temporarily – would amount to banishment or exclusion. But the pre-departure test does not purport to prohibitcitizens from entering Singapore. It is a restriction on providers of transport services, not on citizens themselves. One may argue that this is indirect banishment or exclusion. But it is unclear whether, in Singapore law, something that has the indirect effect of curtailing a constitutional right can be held to impermissibly violate that right. (Existing case law has focused only on state action which directly targeted specific rights-holders.)

A second difficult issue is this: A citizen can travel from a non-“lower-risk” country to Singapore by meeting a pre-condition, namely, presenting a negative pre-departure test. Can making it harder, but not impossible,to exercise a constitutional right by imposing such a pre-condition count as a violation of that right?

On this question, again, there is little settled Singapore jurisprudence. The case law on public assemblies suggests that a right is not violated merely because one must meet certain requirements before exercising it (which partly explains why a law requiring a licence for a public assembly does not infringe on the freedom of assembly). But surely there must be some limit to what restrictions the state could impose; otherwise, any onerous restriction would be lawful as long as there exists one way – even a nearly inaccessible one – to exercise the right. That would make the right, to use a phrase from the case law of Malaysia (whose rights provisions are similar to Singapore’s), “ineffective or illusory”.

One might retort that Article 13(1) means nothing more than that, if a Singapore citizen makes it to the Singapore border (by whatever means), they must be allowed to cross the border. But this would ignore the issue of how one can reach the border in the first place.

In certain other legal systems, all the issues just described would be addressed using some sort of simple proportionality test. However, Singaporean courts have yet to embrace proportionality analysis in constitutional adjudication. Anyway, it is unclear whether proportionality analysis could apply to Article 13(1), which appears to create an unqualified right.

What is one to make of all these issues? Any possibility that the state is acting unconstitutionally would be troubling. But a pre-departure testing requirement for all incoming travellers (including citizens) would advance the critical aim of protecting public health. Perhaps, if the drafters of the Constitution had had a crystal ball, they would not have made the Article 13(1) right unqualified. As for now, the effect of Article 13(1) is unclear. Further, the emergency provisions in the Constitution appear not to allow the suspension of Article 13(1) without also suspending other constitutional rights provisions (which there is now no reason to suspend).

Executive flexibility

All that having been said, the legal issues discussed above are very much academic. The pre-departure testing requirement, as implemented in practice, do not necessarily make it so difficult to enter Singapore as to amount to exclusion or banishment. The Singapore courts have (albeit in a different context) looked favourably upon executive authorities’ taking a “calibrated approach” that has “due regard” for constitutional rights even as the state seeks to pursue legitimate countervailing aims. Here, the authorities have indeed shown willingness to exercise a measure of flexibility.

According to the MOH’s announcement, infected citizens who need medical treatment in Singapore will not be summarily shut out of Singapore in the name of public health; they may return via a “medevac flight or other equivalent forms of conveyance”. The Director-General of Civil Aviation has the power to exempt a person from the pre-departure testing requirement (by declaring that that person is not a “relevant passenger”). Moreover, the authorities have not left in the lurch those overseas who are unable to get access to reliable testing (either at all or before their permission to remain in a foreign country expires). To the contrary, as was helpfully pointed out to me by an MOH spokesperson in response to my queries, and as the Safe Travel Portal states, those who have “difficulties getting a COVID-19 PCR test before their departure” may request assistance through a hotline or an online form. These facts weigh against a finding that Article 13(1) has been violated.

Conclusion

Singapore’s pre-departure test requirement, as applied to citizens, could in theory raise several important constitutional issues. But these issues will remain merely theoretical as long as the executive authorities continue to take, and follow through with, a stance of paying heed to citizens’ rights and interests and being prepared to make appropriate exceptions to rules even as they seek to safeguard public health.

Suggested Citation: Benjamin Joshua Ong, Pre-departure tests for Singapore citizens returning home: possibly constitutionally tricky in theory, but not in practice Int’l J. Const. L. Blog, Aug. 4, 2021, at http://www.iconnectblog.com/2021/08/pre-departure-tests-for-singapore-citizens-returning-home-possibly-constitutionally-tricky-in-theory-but-not-in-practice/

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Published on August 4, 2021
Author:          Filed under: Analysis
 

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