A PDF version of the article can be found here.
Constitutionality of
Primary School Admissions in Singapore
Wu Yulun*
I.
Introduction
Education
policies are frequently discussed, and issues relating to educational equity
have been contentious. The national narrative for compulsory education has been
nuanced. What does it mean by “every school is a good school”?[1] How can one know if a school is
“able to meet the needs of the child”?[2] More importantly, can schools
become “effective social levellers”?[3]
This
article will attempt to answer some of these questions from a constitutional
law perspective, focusing on the constitutionality of primary school admissions
vis-à-vis Article 16 of the Singapore Constitution. It concludes with some
brief reform suggestions.
II.
Background
A.
Article
16 of the Constitution
Article
16 of the Constitution states that: “there shall be no discrimination against
any citizen of Singapore on the grounds only of religion, race, descent or
place of birth … in the admission of pupils and students”.[4] Against this backdrop, the
constitutionality of primary school admissions has been subject to constant
Parliamentary discussion. In March 2020, Nominated Member of Parliament Anthea
Ong asked the Ministry of Education (“MOE”) how MOE could avoid discrimination
(in the wording of Article 16) vis-à-vis primary school admissions.[5] MOE’s response, through
then-Second Minister for Education Indranee Rajah,
was that a system of selection is needed when “the number of students applying to a [primary] school
exceeds the number of available places”. Furthermore, given that there are
“there are no examination results to look at for P1 admission”, Minister Rajah
also considered “children of alumni who have a strong attachment to the school
and wish their children to have a similar experience as they did” as a “valid justification for some level
of priority admission”.[6]
Whilst
the reply by Minister Rajah seems to be justified in terms of policy, it falls short of addressing an underlying issue. Are
priority admissions for primary schools, based on alumni memberships,
constitutional?
B.
Alumni
associations and priority admissions
Alumni
associations, or Old Boy’s/Girl’s Associations, have existed in Singapore for
many years. Historically, these associations were politically active,[7] and were even alleged to be a
front for the now defunct Barisan Socialis.[8] However, in more recent years,
these alumni associations have left the state of political activism in the
1950s and 1960s behind, and are now known to be a viable pathway towards
priority admissions in primary schools.[9]
Priority
admissions, in the context of Singapore’s primary school admissions process,
refer to the annual registration exercise which is divided into several phases.
The following table summarises the details of each phase:[10]
|
Phase |
Details |
|
1 |
For
families who have another child currently studying at the preferred school |
|
2A(1) |
For
parents who are former members of the school (holding alumni membership) and
members of the Advisory or Management Committee of the preferred school |
|
2A(2)[11] |
For
former members (inclusive of both parents and siblings) of the school (not
holding alumni membership), staff members of the school and children in a MOE
Kindergarten under or within the purview of and located within the preferred
school |
|
2B |
For
parent volunteers, members who are endorsed by a church/clan connected to the
preferred school and members who are endorsed as an active community leader |
|
2C |
For
children eligible for P1 but not yet registered into a Primary School |
|
2C
Supplementary |
For
children eligible for P1 but not yet registered into a Primary School after
Phase 2C |
Figure: Summary of the phases of
primary school admissions
It may
be noted that, accounting for the various phases of registration, MOE has also
set aside a minimum number of 40 places for non-alumni affiliated students (ie, Phases 2B and 2C) in every primary school.[12] This article will focus on
admissions based on Phase 2A(1), where registration to admit a child is based
upon alumni priority and proof of membership in the affiliated alumni
association.[13]
III.
Origins
of Article 16
As the
Constitution is the supreme law of Singapore, school admissions based on
descent are prima facie prohibited
and ought to be unconstitutional. Nevertheless, Article 16 has never been
litigated before the Singapore courts. As such, the origins of Article 16 may
be helpful in understanding how ‘descent’ should be understood.
Article
16 was discussed in both the Reid Commission Report[14] and the Wee Commission Report[15]. This section shall consider
them in turn.
The Reid
Report is relevant as its recommendations were incorporated into the Malaysian
Federal Constitution, which was later transplanted to Singapore when she gained
independence in 1965. Two points can be made about the Reid Report. First, it
sets out Article 12 (which was the initial promulgation of Article 16) as a “fundamental
individual right … generally regarded as an essential condition for a free and
democratic way of life”.[16] Second, and more importantly,
the Reid Report makes clear that such rights are enforceable and the Courts can annul “any attempt to subvert them
whether by legislative or administrative action or otherwise”.[17]
This
position remained unaltered when the Wee Report was published in 1966. The only
significant recommendation and amendment as a result of the Wee Report was the
removal of financial aid articles which carved out special exceptions for the
Malays and their related institutions.[18]
However,
neither report addressed how Article 16 was to be defined, and the scope of its
prohibition based on ‘descent’ remains unclear.
Notwithstanding
the uncertain scope of the word ‘descent’ as it appears in Article 16, its
ordinary meaning remains relevant. The ordinary meaning of ‘descent’ is defined
as a person’s “kinship ties to another”.[19] This definition would
sufficiently cover the ‘parents’ who are eligible under Phase 2A(1); it would
not extend to relatives or multi-generational relationships, who may be covered
under a broader definition of ‘descent’. In addition, reference can be also
made to Part X of the Constitution (Citizenship), which supports this limited
definition. This is because a newborn will be able to
acquire Singapore citizenship via descent if “his father or mother is a citizen
of Singapore”.[20] Taken together, it is argued
that the definition of ‘descent’ under Article 16 only contemplates a child’s
direct parents, at least in the context of Phase 2A(1) admissions.
IV.
Origins
of the Primary school Admission Policy
The
origin of this policy also plays a crucial role in determining how the court
might approach the issue of constitutionality, if such an issue arises. As it
is currently unclear if the primary school admission policy stems solely from
executive discretion or from statute/subsidiary legislation, both will be
considered in turn.
On one
hand, it can be argued that the policy originates from executive discretion.
There are three main reasons which support this. First, the earliest mention of
the primary school registration process pre-dates the Education Act[21] and was made known to the public
through press statements rather than through Parliament.[22] This practice continued even after the enactment of the Education Act.[23] For example, the first mention
of the priority admission scheme, consisting of a Phase similar to the present
day Phase 2A(1), can be found in a 1965 MOE statement that was published by the
press.[24] Second, a clearer reference to
the policy as an executive/administrative act can be gleaned from the
Ministerial Statement made by then-Minister for Education Tony Tan in 1985.
Upon stating MOE’s intention to abolish the graduate mothers’ scheme, Minister
Tan also mentioned that MOE will be reverting to its “1982 guidelines”
vis-à-vis primary school admissions.[25] Third, this policy can also be
viewed as an executive ‘direction’ in the enforcement of the Compulsory Education
Act.[26]
Alternatively,
it can be argued that this policy originates from the statutory provisions of
the Education Act[27] (and related subsidiary
legislation). There are two main reasons which support this. First, during the
parliamentary debates surrounding the initial passing of the Act, the
then-Minister for Education Chew Swee Kee broadly
emphasised that the Act was “[not to] discriminate against any particular group
or schools or community or teachers” and stated that the Act’s “overriding purpose
… is to protect the interests of the children”.[28] As such, the historical purpose
of the Act seems wide enough to cover matters such as school admissions.
Second, the admission policy is not an executive/administrative act as it seems
to originate from subsidiary legislation that has been enacted by the Minister
under the Education Act. Such
subsidiary legislation can relate to “all matters regarding the conduct and
efficiency of schools”[29] and “shall be published in the Gazette and shall be presented to
Parliament as soon as possible after publication”.[30] One such subsidiary legislation
is the Education (Grant-in-aid)
Regulations, which expressly lays out the
applicable admission policy for certain government-aided schools.[31] These schools consist of primary
schools,[32] which are obliged to maintain
the same standards as government schools “in respect of … admission of pupils.”[33]
V.
Is PHASE
2A(1) of this Policy Constitutional?
For the
purpose of evaluation, this article will utilise cases related to Article 12 to
evaluate the constitutionality of this policy. There are two reasons for this
approach. First, Article 16 is broadly similar to Article 12. It is one of the
few ‘equality’ articles in the Constitution that was expressly considered as a
fundamental and enforceable right. Second, a plain reading of Article 16
suggests that it should be interpreted consistently with Article 12. Article
16(1) expressly states that the article ought to be interpreted “without
prejudice to the generality of Article 12”. As such, the extensive discussion
of discrimination in Article 12 cases is relevant to Article 16, which also
concerns discrimination.
Furthermore,
in light of Syed Suhail bin
Syed Zin v Attorney-General,[34] it seems that the determination of constitutionality for
both executive and statutory acts would follow some form of the reasonable
classification test.
A.
Challenging
the policy as an Executive/Administrative Act
The test
of “intentional and arbitrary discrimination”[35] vis-à-vis executive actions
seems to be no longer applicable in light of Syed Suhail’s two-step framework.[36] As such, the Syed
Suhail framework will be utilised to evaluate the constitutionality of
executive actions vis-à-vis the ‘descent’ limb of Article 16.
It is
clear that Phase 2A(1) treats equally situated children differently. These
children are equally situated in that they are all eligible for primary school
admission upon reaching the requisite school age.[37] Differential treatment occurs as
parents cannot seek to admit their children under Phase 2A(1) unless it is
shown that they are alumni of the school.
Nevertheless,
this article submits that the differential treatment is reasonable as it is
based on “legitimate reasons”.[38] The government has repeatedly,
in good faith, fine-tuned and explained the objectives behind this policy. For
instance, Prime Minister Lee Hisen Loong has stated
that this policy adequately balances the need for primary schools to “to
develop its traditions, its history, and its identity” without becoming “closed
institutions”.[39] Similar reasons have also been
reflected in various Ministerial addresses to Parliament.[40]
The
constitutionality of this policy is further supported when “due regard [is
given] to the nature of the executive action”. This would include the fact that
the executive act is taken on a “broad-brush basis”[41] and that the government has
committed to reserve 40 places for children who have no prior connections to
the school.[42] As such, if the implementation
of Phase 2A(1) is treated as an exercise of executive/administrative
discretion, it is unlikely to be unconstitutional.
B.
Challenging
the policy in light of the Education Act
As
mentioned previously, subsidiary legislation under the Education Act has
stipulated some form of admission policy for government-aided schools. In
addition, these
schools have to “conform … [and] maintain standards that are comparable with or
similar to those of Government schools”.[43] This suggests that the
admission policy found under the Grant-in-aid
Regulations is generally
representative of the existing admission scheme that has been applied to all
government schools.
Specifically,
the subsidiary legislation stipulates a negative obligation to ensure schools
do not “refuse any person admission to study … on the grounds only of religion or race”.
The lack of mention of ‘descent’ as a prohibited basis for refusing admission
suggests that it may be permissible to refuse a child’s admission to a primary
school solely on the basis of his or her descent. This
seems to be reminiscent of Phase 2A(1), where parents
seeking admission for their child under the Phase would be prima facie rejected if they are unable to show their associated
alumni membership(s).
As such,
there is a limited but plausible situation where an aggrieved applicant to
those schools seeks to challenge the school’s admission policy as an
unconstitutional statutory classification under the abovementioned subsidiary
legislation. In this sense, the reasonable
classification test[44] is relevant in evaluating the
constitutionality of this policy as a statutory classification.
Akin to
a constitutional challenge to the policy as an executive act, it is clear that
the policy allows room for schools to discriminate between children who have
parents affiliated to the school on the basis of their alumni membership and
children who do not have such connections. As Phase 2A(1) limits the
opportunity to admit a child into a particular primary school based on his or
her parents’ alumni status, it does lead to “different treatment to different people”.[45] In other words, this policy as
interpreted from the Grant-in-aid
Regulations should be prima facie
discriminatory based on the ‘descent’ limb of Article 16.
Similarly,
there is a distinct differentiation “capable of being apprehended by the
intellect or understanding, as opposed to the senses”.[46] In seeking to admit a child
under Phase 2A(1), parents have to produce evidence of their membership in the
related alumni association.
However,
the last stage of the test (ie, the ‘nexus’
between the differentia and the purpose sought to be achieved by the
legislation) warrants further discussion. Given the possibility to view Phase
2A(1) as originating from statute (ie, the Education Act and its subsidiary
legislation), a greater emphasis should be placed on the statute when
evaluating the policy’s constitutionality. Whilst the Education Act is meant to unify educational policies in the
1950s,[47] primary school admissions were
not specifically considered.[48] In this sense, it seems that
Phase 2A(1) (as viewed from the Grant-in-aid
Regulations) is unconstitutional as there is simply no nexus between the
purpose and object of the Act vis-à-vis the admissions policy as part of the
subsidiary legislation. Furthermore, the court is not acting like a
‘mini-legislature’[49] by finding subsidiary
legislation unconstitutional. Rather, it is upholding the supremacy of the
constitution as a “first order right of equality”.[50]
VI.
Suggestions
and Conclusion
The
earlier section argues that, in limited circumstances, it is possible for Phase
2A(1) to be found unconstitutional under Article 16. Nevertheless, such a
challenge may be academic should there be further clarifications to the policy
or legislative amendments to the Education Act. For instance, the admissions
policy can be expressly legislated as part of the Education Act, thus giving a clear nexus to the differentia that
arises from the current policy.
There
remain other aspects of the public education system where alumni affiliation
may play a significant role. For instance, alumni affiliation may play a role
when a student decides to appeal for admission into a Junior College or other
pre-university course.[51] As such, the government could go
beyond balancing diversity and alumni support in primary schools[52] by reconsidering the role that
alumni associations play in the overall education infrastructure in Singapore.
In the
age of continued disruptions and discontent towards apparent inequity, it is
time for MOE to give this matter “serious consideration”[53] and refine parts of the primary
school admission policy which may be unconstitutional. In the words of
then-Senior Minister of State Lawrence Wong (who had initiated the recent
review of the primary school registration process and is the current Minister
for Finance), any suggestions are welcomed as the government is committed to
“review[ing] [the primary school admission policy]
regularly … [and will] look at strategies that are going to be sustainable and
that will yield more impact.”[54]
* LLB
(Candidate) (NUS), Class of 2022. All errors and views expressed in this
article remain my own.
[1] Heng Swee Keat, “Keynote Address by Mr
Heng Swee Keat, Minister
for Education, at the Ministry of Education Work Plan Seminar 2015” (22
September 2015), Ministry of Education,
Singapore, online:
<https://www.moe.gov.sg/news/speeches/20150922-keynote-address-by-mr-heng-swee-keat-minister-for-education-at-the-ministry-of-education-work-plan-seminar-2015-on-tuesday-22-september-2015-at-9-15am-at-ngee-ann-polytechnic-convention-centre>
(accessed 22 December 2021).
[2] Ong Ye
Kung, “Keynote Address by Minister for Education Ong Ye Kung, at the Economic
Society of Singapore Dinner” (25 July 2018), Ministry of Education, Singapore,
online:
<https://www.moe.gov.sg/news/speeches/20180725-keynote-address-by-minister-for-education-ong-ye-kung-at-the-economic-society-of-singapore-dinner>
(accessed 22 December 2021).
[3] Lawrence
Wong, “Addendum To The President's Address” (25 August
2020), Ministry of Education, Singapore, online:
<https://www.moe.gov.sg/news/press-releases/20200825-addendum-to-the-president-s-address-1>
(accessed 22 December 2021).
[4] Constitution of the Republic of Singapore (1999 Rev
Ed Sing), art 16 [Singapore Constitution].
[5] Parliamentary Debates Singapore: Official
Report, vol 94 at Question 2 (4 March 2020) (Oral Answers to Questions).
[6] Ibid.
[7] Justus M
van der Kroef, “Nanyang University and the Dilemmas
of Overseas Chinese Education” (1964) 20 China Q 96 at 113.
[8] Parliamentary Debates Singapore: Official
Report, vol 22 at col 1033-1034 (19 December 1963) (Mr Ong Pang Boon).
[9]
Specifically, Phase 2A(1) and 2A(2).
[10] Ministry of
Education, “Registration phases and key dates” (2021), online:
<https://www.moe.gov.sg/primary/p1-registration/registration-phases-key-dates/>
(accessed 4 May 2021) [MOE, “Registration Phases and key dates”].
[11] The amended admissions process will see
“Phases 2A(1) and 2A(2) [being combined] into a single
Phase 2A”: Ministry of Education, “Changes to the Primary 1 (P1) Registration
Framework” (Sept 2021), online:
<https://www.moe.gov.sg/primary/p1-registration/changes-to-p1-registration>
(accessed 22 December 2021).
[12] Parliamentary Debates Singapore: Official
Report, vol 94 at Question 38 (19 November 2018) (Mr Ong Ye Kung) [2018
Debate].
[13] MOE,
“Registration Phases and key dates”, supra
note 10.
[14] Federation
of Malaya Constitutional Commission Report (1956-1957) [Reid Report].
[15] Report of
the Constitutional Commission (1966) [Wee Report].
[16] Federation
of Malaya Constitutional Commission, “Federation of Malaya Constitutional
Commission Report” (1956-1957) at [161]-[162].
[17] Ibid.
[18] Wee Report,
supra note 15 at para 39.
[19] Britannica,
The Editors of Encyclopaedia, “Descent”,
Encyclopaedia Britannica, online:
<https://www.britannica.com/topic/descent> (accessed 22 December 2021).
[20] Singapore
Constitution, supra note 4, art 122(1)(b).
[21] (Cap 87,
1985 Rev Ed Sing) [Education Act]. The Education Act commenced on 13 December 1957.
[22] Department
of Information Services, “Singapore Government
Press Statement:
Registration of Children to Government Chinese Primary Schools” (22 June 1957),
online:
<https://www.nas.gov.sg/archivesonline/speeches/record-details/4e971359-bc60-11e6-b045-0050568939ad>
(accessed 22 December 2021).
[23] Department of Information Services, “Singapore Government Press Statement: Registration for Admission to Chinese Primary Schools”
(23 June 1958), online:
<https://www.nas.gov.sg/archivesonline/speeches/record-details/7b050178-bcf7-11e6-b045-0050568939ad>
(accessed 22 December 2021).
[24] The Straits
Time, “Registration of Primary One children to begin” (9 June 1965), online:
<https://eresources.nlb.gov.sg/newspapers/Digitised/Article/straitstimes19650609-1.2.18>
(accessed 22 December 2021).
[25] Parliamentary Debates Singapore:
Official Report, vol 46 (14 May 1985) at col 30-33
(Ministerial Statement by Dr Tony Tan).
[26] Compulsory Education Act (Cap 51, 2001
Rev Ed Sing), s 6(3) [Compulsory Education Act]: “The Minister may
give such directions, not inconsistent with the provisions of this Act, as
to the performance of the duties and the exercise of the powers of the Board
and the Board shall give effect to any such directions.” [Emphasis added.]
[27] Education
Act, supra note 21, s 11: “The Council shall advise the
Minister upon any matter of educational policy or development which may be referred to it by the Minister or which it may itself propose.”
[Emphasis added.]
[28] Parliamentary Debates Singapore: Official
Report, vol 3 at col 1530 (24 April 1957) (Mr Chew Swee
Kee) [1957 Debate].
[29] Education
Act, supra note 21, s 61(1).
[30] Education
Act, supra note 21, s 61(2). See also s 23(1)(a) of the Interpretation Act (Cap 1, 2002 Rev Ed
Sing), which provides that “[s]ubsidiary legislation
made under any Act or other lawful authority shall — (a) unless it is otherwise
expressly provided in any Act, be published in the Gazette …”
[31] Education (Grant-in-aid) Regulations
(Cap 87, Reg 3, 2013 Rev Ed Sing), reg 8 [Education
(Grant-in-aid) Regulations]:
“An aided school shall not
refuse any person admission to study in the school on the grounds only of
religion or race.” [Emphasis added.]
[32] Ibid,
The Schedule.
[33] Ibid,
reg 7.
[34] [2021] 1
SLR 809 [Syed Suhail].
[35] Eng Foong Ho and others v Attorney-General [2009] 2
SLR(R) 542 at [30]-[31].
[36] Syed
Suhail, supra note 34 at [62]: “… (a) whether it
resulted in the appellant being treated differently from other equally
situated persons; and (b) whether this differential treatment was
reasonable in that it was based on legitimate reasons”.
[37] Compulsory Education Act, supra note 26, s 2 provides
that a “’child of compulsory school age’ means a child above the age of 6 years
who has not yet attained the age of 15 years and who satisfies such conditions
for receiving primary education as the Director-General may determine … ”
[38] Syed
Suhail, supra note 34 at [61].
[39] Lee Hsien
Loong, “Prime Minister Lee Hsien Loong's National Day Rally 2013 (English)” (18
August 2013), Prime Minister’s Office
Singapore, online:
<https://www.pmo.gov.sg/Newsroom/prime-minister-lee-hsien-loongs-national-day-rally-2013-english>
(accessed 4 May 2021).
[40] 2018
Debate, supra note 12: “... we do
not want our schools to become segregated, as it will reduce opportunity for
social mixing and weaken Singapore's social fabric. Thus,
we try to encourage as much mixing and mingling as possible. We adjusted
primary and secondary school registration to ensure primary schools do not
become closed circles.” See also Parliamentary
Debates Singapore: Official Report, vol 90 at Question 81 (12 August 2013)
(Mr Heng Swee Keat): “Many
alumni parents want their children to experience the same ethos, values and school culture that they had as students and they
feel strongly that alumni priority should remain. On the other hand, parents
who are not alumni but who are keen to get their children into those schools
argue that there should be more diversity within each school, and to realise
this, we should give less priority or allocate fewer places to children of
alumni.” [2013 Debate]
[41] Syed
Suhail, supra note 34 at [63].
[42] Ibid.
[43] Education
(Grant-in-aid) Regulations, supra note 31, reg 7.
[44] Lim Meng Suang and
another v Attorney-General and another appeal and another matter [2015] 1
SLR 26 at [57]-[60] [Lim Meng Suang].
[45] Wee
Report, supra note 15 at para 33 (which defined what it means by
discriminatory in the context of the then-Article 8).
[46] Lim Meng Suang, supra
note 44 at [67].
[47] 1957 Debate, supra note 28 at col 1523
(Mr Chew Swee Kee) and at col 1530 (Mr D. S.
Marshall).
[48] Ibid at col 1523-1525 (Mr Chew Swee Kee).
[49] Lim Meng Suang, supra
note 44 at [84].
[50] Chan Sek Keong, “Equal Justice Under
the Constitution and Section 377A of the Penal Code: The Roads Not Taken”
(2019) 31 SAcLJ 773 at 826.
[51] Ministry of
Education, “Joint Admissions Exercise (JAE)” (2021), online:
<https://www.moe.gov.sg/post-secondary/admissions/jae/submit-appeal/> (accessed
4 May 2021) states that ultimately “[a]ppeals are
evaluated on a case-by-case basis
by the institutions. A place may be granted only when compelling reasons are presented and vacancies are available.” [Emphasis added.]
[52] See 2013
Debate, supra note 40.
[53] Ibid.
[54] Parliamentary Debates Singapore: Official
Report, vol 89 at 598 (10 September 2012) (Oral Answers to Questions).