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Separation of powers in Singapore

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Introduction

Constitutionalism

The idea of separation of powers is founded on the basis of constitutionalism; hence, in order to understand the concept of separation of powers, it is important to first look at constitutionalism.

The notion of constitutionalism is primarily one of culture. Lawrence W Beer proposes in Constitutional Systems in the Late Twentieth Century Asia that constitutionalism is where “national history, custom, religion, social values and assumptions about government meet positive law, economic force and power politics.”[1] As a result, the notion of constitutionalism would differ from region-to-region and there can be no one specific notion of constitutionalism across the world. As Thio Li-ann puts it, “constitutionalism is itself a form of culture which is constructed, rather than ‘organic’; a constitutional order is the ‘most complex form of socio-political organisation”.[2]

Even though the constitutional culture differs from country to country, in general, the “idea of modern constitutionalism rests upon the distrust of power”, proposed by Carl J. Friedrich in Limited Government: A Comparison.[3] This is founded on the problem of power as espoused by Lord Acton – that “all power tends to corrupt, and absolute power corrupts absolutely”.[4] Ultimately, the branches that wield this power must wield it responsibly and not indulgently for selfish gains. It is this distrust of power that has resulted in the need to ensure separation of powers.

The ultimate aim of constitutionalism is to establish the idea of limited government. In countries that subscribe to constitutional supremacy, the constitution is the supreme law of the land and demarcates the extent of power that each branch of government (the executive, legislature and judiciary) is able to wield, as well has how each branch may act as a checking mechanism on the other branches. This aspect of constitutionalism is “concerned with curbing oppressive government and preserving individual freedom while retaining a realm for the exercise of legitimate governmental power”.

Separation of Powers

There are three distinct powers in a state that allows it to function. The need for laws to govern the state result in 3 branches of power being created: one to create laws (Legislature), one to execute the laws (Executive) and one to ensure that the rules are being followed (Judiciary). Each branch has its own set of functions and hence the power that is available for each branch to wield is different as well. Even though this power to govern the society has already been divided into the three branches, the idea of constitutionalism implies “a commitment towards regularised legal restraints on power in the form of inter- and intra- institutional checks and balances and legal procedure”. Simply put, there must be a separation of powers, where each branch is able to wield its own power to perform its functions independent of undue influence but yet be restrained via checking mechanisms from an abuse of its power.

Madison observes, in The Federalist No. 51, that “[a]mbition must be made to counteract ambition.” In The Federalist No. 48, he explains the need for a system of checks and balances in preserving the separation of powers doctrine:

“… unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained.”

In line with the separation of powers, a system of checks and balances serve to ensure that each power will not be subject to abuse by the controlling body. While the checking mechanisms exercised by each body should be sufficient to prevent abuse of power, it should also be careful not to overstep its boundaries and encroach into the power that the other branches are able to wield lawfully.

Reasons for Separation of Power

One of the most notable proponents of the conception of separation of power is Montesquieu in The Spirit of the Laws. Here, he observes that: “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

Again, there is no liberty, if the judiciary power be not separated form the legislature and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.”

The separation of powers brings its merits in the efficient and just governance of the nation. However, where each branch of actors wields more power than they legitimately should, there is room for abuse, leaving the rest of the society open to the potential of being ruled by tyranny of the majority. Hence it is important that a system is in place to ensure that power will not be abused to the detriment of the people.

Separation of power also promotes the efficiency and competence in allocating powers. This helps to “fit form to function by matching tasks to the most suitable body”. Specialisation of the functions and roles of the various branches help to promote the efficiency, as each branch would have specific tasks and goals in mind that they can work towards. After all, one of the main aims of all these measures are to ensure that society’s goals are met, and this can be done through an efficient system.

Lastly, separation of powers helps to enhance democratic responsibility. With the various branches of government being responsible for specific functions, people would be more inclined to take charge of the voting process by voting into Parliament (who will form the Legislature) persons who would best represent their views.

Pure and Partial Separation of Powers

There are two main notions of separation of power – pure separation of power and partial separation of power. Pure separation of power was a concept formulated by MJ C Vile in Constitutionalism and the Separation of Powers to be a constitutional arrangement where there are no overlaps at all between the branches. In fact, “the persons who compose these three agencies of government must be kept separate and distinct, no individual being allowed to be at the same time a member of more than one branch. In this way each of the branches will be a check to the others and no single group of people will be able to control the machinery of the State”.

In practice, this is hard to achieve and largely remains a theoretical notion. One of the few states that can be considered close to achieving this state of separation of powers would be the United States of America.

In reality, legal systems such as those that follow the Westminster model adopt a partial separation of powers. This occurs when there are overlaps across the three branches. In Singapore, Parliament exercises legislative power while Cabinet exercises executive power. Both institutions overlap because Ministers in Cabinet are appointed from the Members of Parliament. Thus, the same group of people are able to exercise both the power to make law and to execute the law.

The origins of the separation of powers in Singapore

The origins of separation of powers in Singapore lie in the Westminster constitutional model inherited from the English during its colonial past, first as part of the Straits Settlements, and then as an independent nation. When Singapore was transferred to the Colonial Office in 1867, it was given a normal colonial constitution.[5] This constitution vested legislative authority over the colony in the Legislative Council[6] The constitution also retained the structure of the judicial system already established by the Second Charter of Justice , which vested judicial power in the judiciary.[7] In 1877, an Executive Council was introduced into the government of the Straits Settlements, with the role of advising the Governor on all affairs of importance.[8]

From 1877 onwards, this broad structure specifying the powers of the three organs of state remained largely intact. The constitution remained unchanged until the end of the Japanese Occupation, when the Straits Settlements was then disbanded. Although new constitutional amendments were then made, the overarching hierarchy of executive, legislative and municipal councils and rural board which had been operating before the war was retained.[9] This basic principle also survived Singapore’s merger and separation from Malaya[10] , and consequent independence.

The Singapore constitution thus vests legislative, executive and judicial power in the legislature, executive and judiciary respectively.[11] This is a defining feature of Westminster-style constitutions, of which Singapore’s constitution is one. The doctrine is implicit in the separate roles of the organs of state. In the case of Singapore, the separation of powers is left to necessary implication from the adoption in the constitution of a government structure with a legislature, executive and judiciary.[12]. This feature is incorporated into the Westminster constitutional structure; it divides power among the three organs of state.[13] By adopting such a government structure, Singapore accepts the doctrine of the separation of powers.

The separation of powers doctrine in Singapore is not absolute but qualified; it is not pure but partial.[14] This feature is also characteristic of the Westminster constitutional framework, which entails a fusion of the legislative and executive branches of government. The partial separation of powers doctrine in Singapore is exemplified in the following ways:

  • First, Singapore has a parliamentary executive. While Parliament exercises legislative power while Cabinet exercises executive power, these two institutions are not separate or independent. This feature was described by Bagehot as “the efficient secret of the English constitution”, which was defined as “the close union, the nearly complete fusion, of the executive and legislative powers”. This fusion is facilitated by the existence of the Cabinet, as a “committee of the legislative body selected to be the executive body”.[15] The ministers in Cabinet are appointed from the Members of Parliament[16] ; they thus exercise the power both to make law and to execute the law.
  • Second, the Executive has power to enact subsidiary legislation and assent to treaties. This is contrary to the non-delegation doctrine[17] , by which one branch of government must not authorise another entity to exercise the power or function which it is constitutionally authorised to exercise itself. In Singapore, subsidiary legislation, though made by the executive, has “legislative, as opposed to administrative effect”.[18] The contravention of the non-delegation doctrine is deemed necessary because time constraints make it impossible for Parliament to enact all laws.[18] In subsidiary legislation, the broad, general terms in primary legislation are explained and elaborated upon in detail.[18]
  • Third, the President is vested with both executive authority and legislative power, since “laws cannot be passed by the legislature without presidential assent”[14] . The President has limited powers to withhold assent on certain matters, including specific forms of constitutional amendments, changes to the ability of the Central Provident Fund to invest, and amendments of the President’s own discretionary powers.[19]

While the English influence on Singapore’s governmental system is visibly strong, Singapore’s system fundamentally differs by having a unicameral system of government. Singapore’s take on the separation of powers is greatly informed by its unique values and legal culture. The traditional separation of powers doctrine in England is based on a fundamental distrust of human nature, and by extension, an even greater distrust of power, which “tends to corrupt”. Since “absolute power corrupts absolutely”, it is necessary for each branch of government to be checked and managed, to prevent its otherwise absolute and uncurtailed power being abused.

Singapore, on the other hand, has based its system of government on the election of trustworthy and honourable leaders, instead of on the implementation of a system specifically to prevent dishonourable ones misusing their power. In other words, aside from legal methods of controlling government, i.e. through institutionalised checks and balances, non-legal methods are used as well ; “internally from Parliament and the Executive itself in upholding high standards of public administration and policy”[20] .

This is evident from the government’s stance that government ought to be trusted, not fettered:

“The concept of government by honorable men (junzi), who have a duty to do right for the people, and who have the trust and respect of the population, fits us better than the Western idea that a government should be given as limited powers as possible, and should always be treated with suspicion unless proven otherwise.”[21]

This attitude towards the control of public power reflects the Confucian ideals underlying Singapore’s take on the separation of powers. Besides this concept of government leaders as “honourable men”, Confucian legal philosophy can also be seen in the prioritising of community’s broad interests above individual welfare. Placing few limitations on legislative and executive power may be justified by the need for efficient administration of state affairs, even if theoretically, such a wide power to govern may undermine individual freedoms.

Inter-branch checks in upholding the separation of powers

While its main influence is English law, Singapore’s legal system has, indeed, since national independence, evolved increasingly towards its local context.[22] The developments of government and constitutionalism have brought about distinctive key features in its system of checks and balances.

In the scheme of checks and balances, a few issues arise due to the long-standing one-party dominance in Singapore’s political system. Since the 1963 general elections, the People’s Action Party has recurrently prevailed as the majority party in Parliament.[23] In the recent 2011 general elections, they managed to capture 81 of 87 seats contested.[24] The implications of such political state of affairs will be explicated accordingly below.


Legislative checks on the Parliamentary Executive in Singapore

As mentioned above, Singapore has a parliamentary executive, in which Ministers are drawn from and accountable to Parliament. In embracing the “efficient secret”, it is imperative to understand that the parliamentary executive does not mean government by Parliament; it is a separate and distinct branch of power, suited to make policies and carry out executive decisions.[25]

However, due to the party system, the Cabinet executive often comprises the leaders of the majority party in Parliament. As such, they may then assert control over the legislative agenda.[26] One associated problem is that of an “elective dictatorship” – Lord Hailsham describes it as the dominance of the Executive over a subservient Parliament.[27] The exercise of control by one branch over another would, in theory, undoubtedly contravene the doctrine of pure separation of powers.

Doctrine of ministerial responsibility

The doctrine of ministerial responsibility is a constitutional convention adopted from the Westminster constitutional model. Following this doctrine, Parliament is to impose a check on the Cabinet by scrutinising Government Bills and actions, and calling upon ministers to justify policies before the House in open debate.[28] This ensures that the Cabinet is accountable not only to Parliament, but also to the public, who have access to transcripts of Parliamentary debates.

Consistent with the party system, the Singapore Government observes collective ministerial responsibility, or collective Cabinet responsibility. This is enshrined in Article 24(2) of the Constitution, which states that “[s]ubject to the provisions of this Constitution, the Cabinet shall have the general direction and control of the Government and shall be collectively responsible to Parliament.”[29] According to Prime Minister Goh Chok Tong, as he was then in 2002, “[t]he principle of collective responsibility means that there is an agreement between the Prime Minister and his Cabinet colleagues that they will stand together as a team when accounting for their actions before Parliament.”[30] Aside from accountability of the Government, this principle also seeks to enhance inter-ministry co-ordination by ensuring that all Ministers share the same broad policy positions, and that there are no “unnecessary duplication or, worse, mutual contradiction”.

This check on the executive branch, however, is a weak one. As earlier mentioned, Cabinet Ministers are often the leaders of the majority party in Parliament. They may reinforce party discipline and loyalty through the party whip such that MPs from that party conform to the party line.[31] This could mean that the Parliamentary majority are less inclined, if at all, to oppose or challenge the executive’s decisions.

Efficacy of opposition MPs, and of the NCMP and NMP schemes

Opposition Members of Parliament

Given the one-party dominance in Singapore, the opposition MPs in Parliament play a crucial role in checking the executive. They are to enforce the doctrine of ministerial responsibility by providing constructive criticism of executive policies.[32] They are also entitled to vote for or against Bills and motions,[33] but this may exercise little influence over majoritarian power. As such, the effectiveness of the opposition hinges on its ability to keep the executive, as well as the majority party, vigilant and accountable to society.

Non-Constituency Members of Parliament

In addition, Parliament is also composed of Non-Constituency Members of Parliament (NCMPs). Their role is provided for in Art 39(1)(b) on the basis of ensuring “the representation in Parliament of a minimum number of Members from a political party or parties not forming the Government”.[34] There are to be no more than 9 NCMPs returned at a general election. The NCMP scheme is regulated by sections 52 and 53 of the Parliamentary Elections Act.[35]

Marking a departure from the Westminster model, the NCMP scheme was conceived to introduce alternative political voices in Parliament. According to Deputy Prime Minister Wong Kan Seng, the presence of a Parliamentary minority would help younger MPs gain experience in debate, ensure transparency of Parliamentary proceedings and “dispel any suspicions of cover-ups”, as well as give the opposition a forum to put forth their agenda.[36] NCMPs enjoy the same privileges and immunities as elected Members, but they cannot vote on a Bill to amend the Constitution, a Supply, Supplementary or Final Supply Bill, a Money Bill, a vote of no confidence in the Government or a motion for the removal of the President from office.[37]

Some commentators have remarked that the NCMP scheme is premised on the assumption that the one party-dominance will continue to govern Singapore’s political state of affairs. [38][39] Opposition MP Low Thia Kiang opined that Singapore ought to “build up a system in which the Opposition can be elected and can be properly represented in this House rather than a system encouraging or incentivising Singaporeans to vote for the PAP, who will provide you with NCMPs”.[40] Nonetheless, the scheme gives the opposition parties a platform to share their political ideas,[41] as well as augments opposition strength in Parliament as a check on the executive.

Nominated Members of Parliament

Art 39(1)(c) further provides for the role of Nominated Members of Parliament (NMPs) in Parliament,[42] departing yet again from the Westminster model.[43] As stated in the Fourth Schedule, s 3(2), the purpose of the NCMP scheme is to have Members of Parliament, hailing from select fields and professions, who can “reflect as wide a range of independent and non-partisan views as possible”.[44] This means that, unlike NCMPs, NMPs are to contribute apolitical voices in Parliament.

Though NMPs as a component of Parliament may in effect be insignificant as a check on the executive, they could present alternative viewpoints which the Government may consider and even choose to respond to, particularly where they concern socially significant factors. As said by NMP Associate Professor Paulin Tay Straughan, “The day when we move into a two-party system where opposing voices are more visible, we will not need NMPs or NCMPs anymore. But until we get there, the NMPs have a role to play.”[45]

Judicial checks on the legislature and executive in Singapore

It is said by the High Court, in Law Society of Singapore v. Tan Guat Neo Phyllis,[46] that to prevent each arm of government from acting beyond its constitutional powers, “[u]nder the Constitution, the means adopted and recognised by all three arms of government is the judicial power of the court to review the legality of legislative and executive acts and declare them unconstitutional and of no legal effect if they contravene the provisions of the Constitution.” This describes the guardianship role of the judiciary in safeguarding the Constitution and the doctrine of separation of powers.

Independence of judiciary

Judicial independence from the other branches of government allows the judiciary to act as a check and balance on legislative and executive power, and thus enhances the separation of powers. The extent of judicial independence in Singapore can be examined by reference to the way judges are appointed, and in particular, the independence of the lower judiciary. These two aspects relate specifically to the protection of the judiciary ‘’as an institution’’ from extraneous influences, rather than the protection of ‘’individual members of the judiciary’’ from external pressures.[47]

Appointment of Judges

Article 95(1) of the Constitution provides that the appointments of judges and judicial commissioners of the Supreme Court are made by the President, who, in his discretion, concurs with the advice of the Prime Minister.[48] The Prime Minister thus possesses the primary power of appointment of judges of the Supreme Court.[49] Although the Prime Minister must consult the Chief Justice[50] , and the President is allowed to veto a judicial appointment[51] , these are relatively small roles played in the final say as to who should be appointed to the judiciary.[49] The criticism has thus been made that the judiciary will not be an effective check against the abuse of executive power, since the executive is likely to appoint judges who believe in the same fundamental policies.[49] It is said that this militates against the separation of powers.

On the other hand, it is acknowledged that in a small jurisdiction like Singapore, executive and judicial roles are inevitably intertwined. There will be very few potential appointees to the Supreme Court who have never been involved with the executive government.[52].

The Constitution does contain several safeguards for judicial independence, protecting the judiciary from political pressures. Supreme Court judges hold office until the age of 65.[53] They are constitutionally guaranteed protection from “adverse remunerative changes”[54] through Article 98(8). Supreme Court judges may not be removed from office except under special circumstances. The President may, on the recommendation of a tribunal of five Supreme Court judges or former Supreme Court judges from Singapore or any part of the Commonwealth, remove a judge from office, if the Prime Minister or Chief justice on the Prime Minister’s advice informs him of the judge’s misbehaviour or inability to properly discharge the functions of this office.[55]

It would appear that executive control over the removal of judges is highly limited. However, though the Prime Minister alone cannot make the decision to dismiss a judge, he does have power over the composition of the five-judge tribunal. Moreover, it is argued that the power of the executive to extend the tenure of Supreme Court judges beyond the age of 65[56] , by hiring them as contract judges, would motivate judges to make decisions that are in line with government policy. On the other hand, a mechanism for the extension of a judge’s tenure is necessary to ensure that better judges are not replaced by less capable ones.[57]

Lower Judiciary

In Singapore, the lower or subordinate judiciary consists of the District Judges and Magistrates of the Subordinate Courts. These judges are members of the Legal Service, which is governed by the Legal Service Commission (LSC).[58] The President appoints subordinate court judges from among the members of the Legal Service on the recommendation of the Chief Justice, who is also the chairman of the LSC.[59]

The LSC is composed of members who enjoy differing degrees of independence from the executive branch.[60] The Chief Justice, the Attorney-General and a superior judge appointed by the Chief Justice are highly independent from executive influence. On the other hand, the Chairman and two other members of the Public Service Commission (PSC) enjoy less security of office; though they can only be removed for cause, upon the requisite finding by a tribunal of three superior court judges, they enjoy a tenure of only five years.

The lower judiciary in Singapore has come under even more scrutiny than the superior judiciary[61] . The substance of the criticisms is that the career advancement of the lower judiciary depends on the LSC, of which the Attorney-General is a member.[62] The worry is of heavy legislative and executive influence over the appointment of judges to the lower judiciary.

A further criticism is that members of the lower judiciary can be transferred out of the courts to the Attorney-General’s Chambers or to some other government department as a legal officer.[62] Since subordinate court judges lack tenure, and the LSC determines their appointment terms[63] , district court judges are routinely shuffled between the executive and judicial branches. This gives rise to the concern that they will be influenced by government ideology and policy in their role as judges.[64]

However, such observations about the apparent connections between the executive and judiciary are merely theoretical. For a more accurate analysis of the separation of powers in Singapore, the “[j]udiciary must be judged on its performance in the context of actual litigation”[65] . The case of Senior District Judge Michael Khoo being demoted to the rank of deputy public prosecutor can be taken for analysis. The demotion occurred shortly after Khoo acquitted Jeyaretnam, a prominent opposition member of Parliament, of two charges of lying in a statutory declaration. The reason for the transfer was never conclusively established; while it could have been motivated by executive disapproval of the acquittals, it may well have been a routine transfer with no implications for executive interference in the lower judiciary. The latter was the explanation officially given for the transfer.[66]

Furthermore, assertions that the lower judiciary is not separate from the executive since the LSC is allied to the government disregard the fact that the Chief Justice is the head of the LSC and has the final say on judicial postings.[67] Moreover, in a small state, it may not be feasible to have a separate judicial and legal service.[62]

Judicial review of primary legislation

As stated in Mohammad Faizal bin Sabtu v. Public Prosecutor,[68] the doctrine of separation of powers “entails, in so far as the judicial branch is concerned, that the legislative and the executive branches of the State may not interfere with the exercise of the judicial power by the judicial branch. This total separation between the exercise of the judicial power on the one hand and the exercise of the legislative and the executive powers on the other hand is based on the rule of law.”

In Singapore, the upper judiciary acts as an institutional check through its inherent power to declare judicial review as within its jurisdiction. Sir Edward Coke expounds on this facet of judicial power in Dr. Bonham’s Case:[69]

"… in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void; for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void...some statutes are made against law and right, which those who made them perceiving would not put them in execution."

As such, the Supreme Court upholds the separation of powers and constitutional supremacy by exercising its powers of judicial review of primary legislation, and thereby checking on the legislature. It must ensure that all forms of legislation are constitutional. This is especially important in Singapore where Parliament and the Parliamentary Cabinet are ‘fused’, to prevent subordination of the judiciary to the executive.

Judicial review of administrative action

Judicial review jurisdiction has been asserted in several Singapore cases and must be grounded in Article 93.[70] The High Court in Chan Hiang Leng Colin v. Public Prosecutor held that it had “the power and duty to ensure that the provisions of the Constitution are observed. The court also has a duty to declare invalid any exercise of power, legislative and executive, which exceeds the limits of the power conferred by the Constitution, or which contravenes any prohibition which the Constitution provides.”[71] It is thus accepted that courts are empowered to strike down unconstitutional laws, as well as hold administrative acts invalid, embodying the doctrine of separation of powers, though the former has yet to happen.

Limits of judicial review

Constitutional or legislative prohibition

The judicial challenge of the constitutionality of amendments made to the Internal Security Act are precluded.[72] Further, judicial review may be statute be ousted or severely restricted through limitation clauses.[73]

While the judiciary is empowered to declare the unconstitutionality of legislation, the legislature is able to overrule such decision by amending the law or the Constitution. This is especially so when Parliament is subject to majority rule. For example, The Court of Appeal in Chng Suan Tze v. Minister for Home Affairs[74] adopted an objective test of review of ministerial discretion in the issuance of preventive detention orders. However, within a month of the decision, the case was followed by amendments by Parliament to the Constitution and the Internal Security Act in 1989[75] which purported to return to a subjective test of review as espoused in Lee Mau Seng v. Minister for Home Affairs.[76]

This form of legislative overruling, if done frequently, has two major detrimental effects. Firstly, if the legislature or executive is seen as being able to manipulate the constitutional limits on their powers, this would greatly impair judicial independence. Secondly, it may thwart the perception that the judiciary is a co-equal institution in the scheme of the separation of powers, thus causing a loss of respect and public confidence in the system.[77] In this case, Quoting Lord Diplock, Professor S. Jayakumar, Minister of Law then, justified this truncation of judicial review on the basis that national security is “the responsibility of the executive government”, and it is a non-justiciable question which “the judicial process is totally inept to deal with”. He stated that the Executive would be accountable to both Parliament and the people for its exercise of discretionary powers.[78]

However, it remains an open question whether ouster or limitation clauses may be challenged on the approach set out in Anisminic v. Foreign Compensation Commission.[79] Chan Sek Keong CJ provided an extra-judicial academic argument that any ouster clauses attempting to oust the supervisory jurisdiction of the courts may contravene Article 93, which vests the judicial power of Singapore in the Supreme Court.[80]

Doctrine of non-justiciability

The courts have developed an internal doctrine of self-imposed judicial restraint by which they will either decline to review what they consider a non-justiciable issue, or calibrate review to a low intensity or exercise review of limited grounds.[81]

In matters pertaining to “high policy” such as treaty-making, national defence and foreign relations, the courts will generally decline judicial review of related prerogative powers in deference to the executive.[82] This doctrine stems from the idea that there are cases dealing with a subject matter which falls beyond the purview of judicial review.[83] The court’s decision to intervene or not would be guided by the following four principles as enunciated by Menon JC in Lee Hsien Loong v. Review Publishing Co Ltd:[84]

  1. Justiciability depends, not on the source of the decision-making power, but on the subject matter that is in question. Where it is the executive that has access to the best materials available to resolve the issue, its views should be regarded as highly persuasive, if not decisive.
  2. Where the decision involves matters of government policy and requires the intricate balancing of various competing policy considerations that judges are ill-equipped to adjudicate because of their limited training, experience and access to materials, the courts should shy away from reviewing its merits.
  3. Where a judicial pronouncement could embarrass some other branch of government or tie its hands in the conduct of affairs traditionally regarded as falling within its purview, the courts should abstain.
  4. In all cases of judicial review, the court should exercise restraint and take cognisance of the fact that our system of government operates within the framework of three co-equal branches. Even though all exercise of power must be within constitutional and legal bounds, there are areas of prerogative power that the democratically elected Executive and Legislature are entrusted to take charge of, and, in this regard, it is to the electorate, and not the Judiciary, that the Executive and Legislature are ultimately accountable.

However, raising issues in areas of high policy, such as national security, would not automatically apply as a “plea in bar”, as stated by the Court of Appeal in Chng Suan Tze.[85] On scrutiny of such cases which are prima facie non-justiciable, the courts may be able to glean a question of law that is justiciable.[86]

Prosecutorial discretion and the separation of powers under the Constitution

While Article 93 vests judicial power in the courts, Article 35(8) provides that “[t]he Attorney-General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence.”[87]

In Tan Guat Neo Phyllis,[88] the High Court stated that these two provisions expressly separate the prosecutorial function from the judicial function, and that they are coequal. As such, the two functions are not to encroach upon each other, although the court may interfere where that the exercise of prosecutorial power is unconstitutional.

President of the
Republic of Singapore
File:Singapore Presidental Crest.gif
Presidential Crest
Presidential Standard
since 1 September 2011
ResidenceIstana
AppointerDirect popular election
Term lengthSix years
Inaugural holderYusof bin Ishak
Formation9 August 1965
Websitewww.istana.gov.sg

Intra-branch checks

The Elected President as an Intra-branch Check on the Executive

The President of Singapore represents an indigenisation of the Westminster system and is cast as a check against the powers enjoyed by the parliamentary executive, adding to the overall scheme of checks and balances in the doctrine of separation of powers.[89] Nonetheless, the institution has a limited range of functions and is essentially reactive in nature, such that it cannot be seen to be an alternative locus of political power.[90]

How the president serves as an intra-branch check

The elected presidency has the power to block attempts by the government to draw down past reserves it did not accumulate, to approve changes to key appointments, and to exercise oversight over the Corrupt Practices Investigation Bureau and decisions of the Executive under the Internal Security Act and the Maintenance of Religious Harmony Act.[91] The aim is not unlawful executive actions, but lawful actions against national interests.[92]

Its impetus lies in the government perception that there were “inadequate checks in our present parliamentary system of government” as a political party with a parliamentary majority, even of one seat, “can do practically anything it wishes, provided it acts lawfully”[93] in matters pertaining to financial assets and key civil service appointments. It was also thought that it would be prudent to institute a check “while honest men are still in charge”.[94]

While the objective of protecting against fiscal mismanagement was agreed on, the method of doing so was disputed, with opposition politicians arguing that the parliamentary system would have sufficient checks if it were allowed to operate and flourish.[95]

Efficacy of the president as an intra-branch check

To be an effective check, the elected president must be sufficiently independent and adequately empowered to change or at least block harmful or unsound government policies.[96]

The independence of the elected president

The president cannot hold any other constitutional office; if he is a Member of Parliament, his seat is to be vacated.[97] This requirement does not apply to someone exercising the powers of the presidency in the event of temporary disability or vacancy. The president is also required to resign from membership in any political party, reflecting the depoliticisation of an elective office.[98] To ensure that the president’s watchdog function is unhampered by executive intimidation, the office is maintained out of the Civil List which shall not be diminished during the Elected President’s term.[99] The Elected President is also immune from civil suits for acts done in his official capacity.[100]

Powers of the elected president

The Elected President also shall have access to Cabinet papers and may request information concerning the reserves of the Government, statutory board or government company, and the relevant Minister, or officer of the statutory board or government company is under a duty to provide such information.[101] The president may also “veto” certain executive decisions pertaining primarily to three areas: fiscal management, ensuring meritocracy in a corruption free civil service, and as a guardian over civil liberties where judicial review has been ousted.[102]

The Elected President, however, does not have the “final say” over certain decisions for instance, in the appointment of members of statutory board, in Article 22A[103], as Parliament may activate an override mechanism with respect to the presidential “veto”, to break an impasse. The original rationale was the override mechanism should only apply to matters falling within parliamentary purview, such as supply bills. Any disputes in respect of the budgets of statutory boards and government companies would be resolved between the President and executive through fresh submissions of budgets or new nominees for appointments.[104]

In the interests of fine-tuning the Elected Presidency provisions, with the agreement of the Elected President, Prime Minister Goh in 1996 moved an Amendment Bill designed to extend the override mechanism to appointments to key civil service appointments, and the boards of key statutory boards and Fifth Schedule government companies. The desire to extend the override mechanism was to cater to situations where disagreement over appointments between the Executive and President were “one of judgment, rather than a black and white case of an unfit candidate”. If all the Government could do was to put up a fresh nominee, the fear was that “we may well end up with an inferior candidate” and it was preferable to have that override mechanism to break the impasse.[105]

The President may, pursuant to Article 100 check the power of the executive in attempting to circumvent or curtail the President’s power by referring to a tribunal to consider the effect of such a bill on any provision of the constitution. However, the President lacks power to refer a question to the tribunal if the cabinet does not assent.[106]

Evaluation of the efficacy of the president

As observed by notable academics, the override mechanism shows that the Elected President is no obstacle to a government which continues to enjoy untrammelled power so long as it controls a clear two-thirds parliamentary majority which is able to amend the Constitution at will. The weaker the Government is, the stronger the presidential check is, and the stronger the Government, the weaker the presidential blocking mechanism.[107]

The Presidential Council of Minority Rights as an Intra-branch check on the legislature

As mentioned earlier, Singapore has a unicameral legislature and does not follow the division of legislative authority between an upper, and a lower house, unlike some other jurisdictions.

Nevertheless, the establishment of the Presidential Council for Minority Rights, as provided for in the Constitution[108], could be seen as a quasi- Second Chamber as suggested by academics, as it plays a role in legislative review, highlighting Bills containing differentiating measures, guarding the interests of racial and religious minorities, playing its role in the doctrine of the separation of powers. [109]

However, Parliament can easily circumvent this as notwithstanding an adverse report, the Bill can be presented to the President if two-thirds of Parliament endorses a motion for Bill presentation.[110] The Presidential Council of Minority Rights’ powers of legislative revision are further attenuated by Art 78(7) which designates certain types of Bills as falling without the ambit of Presidential Council of Minority Rights scrutiny. Thus the Presidential Council of Minority Rights has been said to be a weak institution that lacks coercive power.[111]

See also

Notes

  1. ^ Lawrence W Beer (1992), Constitutional Systems in the Late Twentieth Century Asia, Seattle & London: University of Washington Press, p. 2, ISBN 978-029-59-7174-2.
  2. ^ Thio Li-ann (2012), "The Province of Constitutional Law", A Treatise on Singapore Constitutional Law, Singapore: Academy Publishing, pp. 13–14, ISBN 978-981-07-1516-8.
  3. ^ Carl J. Friedrich (1974), Limited Government: A Comparison, Englewood Cliffs, NJ: Prentice Hall, pp. 12–13, ISBN 978-013-53-7159-6.
  4. ^ Letter to Bishop Mandell Creighton, April 5, 1887 published in Historical Essays and Studies, edited by J. N. Figgis and R. V. Laurence (London: Macmillan, 1907)
  5. ^ Kevin Y L Tan (1989), "The Evolution of Singapore's Modern Constitution: Developments from 1945 to the Present Day", SAcLJ: 1 at 1.
  6. ^ Tan, p. 2.
  7. ^ Tan, p. 2.
  8. ^ Tan, p. 4.
  9. ^ Tan, p. 6.
  10. ^ Tan, p. 14.
  11. ^ Constitution of the Republic of Singapore (1999 Reprint), Arts. 23, 38 and 93.
  12. ^ Hinds v. The Queen [1977] UKPC 22, [1977] A.C. 195, Privy Council.
  13. ^ Mohammad Faizal bin Sabtu v. Public Prosecutor [2012] SGHC 163 at paras. [11]–[12].
  14. ^ a b Thio Li-Ann (2003), "The Constitutional Framework of Powers", in Kevin Y L Tan (ed.), The Singapore Legal System, Singapore: Singapore University Press, pp. 67–122 at 77, ISBN 9971-69-213-9 (pbk.) {{citation}}: Check |isbn= value: invalid character (help).
  15. ^ Walter Bagehot (2007), "The Cabinet.", The English Constitution, New York, NY.: Cosimo Classics, pp. 1–32 at 10–11, ISBN 978-1-60206-255-9 (pbk.) {{citation}}: Check |isbn= value: invalid character (help).
  16. ^ Singapore Constitution, Art. 25(1).
  17. ^ Thio Li-Ann (2003), "The Constitutional Framework of Powers", in Kevin Y L Tan (ed.), The Singapore Legal System, Singapore: Singapore University Press, pp. 67–122 at 83, ISBN 9971-69-213-9 (pbk.) {{citation}}: Check |isbn= value: invalid character (help).
  18. ^ a b c Thio Li-Ann, A Treatise on Singapore Constitutional Law (Academy Publishing, 2012) at p 314.
  19. ^ Singapore Constitution, Art. 21(2)(c).
  20. ^ Chan Sek Keong (2010), "Judicial Review – From Angst to Empathy", SAcLJ: 469 at 480.
  21. ^ Competitive Salaries for Competent & Honest Government: Benchmarks for Ministers & Senior Public Officers: White Paper [Cmd. 1 of 1991], Singapore: Printed for the Govt. of Singapore by the Singapore National Printers, 1991 {{citation}}: Cite has empty unknown parameter: |1= (help).
  22. ^ Gary F. Bell (1999), "The Singapore Legal System in Context–Whither the Concept of the National Legal System?", in Kevin Y.L. Tan (ed.), The Singapore Legal System (2nd ed.), Singapore: Singapore University Press, pp. 1–25 at 12, ISBN 9971-69-213-9 (pbk.) {{citation}}: Check |isbn= value: invalid character (help).
  23. ^ 2011 Parliamentary Election Results, Elections Department, 15 Feb 2012, retrieved 2 October 2012
  24. ^ 2011 Parliamentary Election Results, Elections Department, 7 June 2012, retrieved 2 October 2012
  25. ^ Thio Li-ann (1999), "The Constitutional Framework of Powers", in Kevin Y.L. Tan (ed.), The Singapore Legal System (2nd ed.), Singapore: Singapore University Press, pp. 67–122 at 83, ISBN 9971-69-213-9 (pbk.) {{citation}}: Check |isbn= value: invalid character (help).
  26. ^ Thio Li-ann (2012), "The Executive, the Prime Minister and Cabinet Government", A Treatise on Singapore Constitutional Law, Singapore: Academy Publishing, pp. 369–384 at 377, ISBN 978-981-07-1516-8 (pbk.) {{citation}}: Check |isbn= value: invalid character (help).
  27. ^ Basil Markesinis (1977), "Elective Dictatorship", Parliamentary Affairs, XXX (3): 324
  28. ^ Thio, "The Constitutional Framework of Powers", p. 85.
  29. ^ Constitution of the Republic of Singapore (1999 Reprint), Art. 24(2).
  30. ^ Goh Chok Tong (Prime Minister), "Debate on President’s Address", Singapore Parliamentary Debates, Official Report (5 April 2002), vol. 74, col. 544–545ff.
  31. ^ Thio, "The Constitutional Framework of Powers", p. 85.
  32. ^ Thio, "The Constitutional Framework of Powers", p. 86.
  33. ^ Singapore Constitution, Art. 57(1).
  34. ^ Singapore Constitution, Art. 39(1)(b).
  35. ^ Parliamentary Elections Act (Cap. 218, 2011 Rev. Ed.) ("PEA"), ss. 52–53.
  36. ^ Wong Kan Seng (Minister for Home Affairs), "Constitution of the Republic of Singapore (Amendment) Bill", Singapore Parliamentary Debates, Official Report (26 April 2010), vol. 87, col. 53ff.
  37. ^ Singapore Constitution, Art. 39(2).
  38. ^ Thio Li-ann (2012), "The Legislature and the Electoral System", A Treatise on Singapore Constitutional Law, Singapore: Academy Publishing, pp. 285–359 at 307, ISBN 978-981-07-1516-8 (pbk.) {{citation}}: Check |isbn= value: invalid character (help).
  39. ^ Tey Tsun Hang (4 December 2008), "Singapore's electoral system: government by the people?", Legal Studies: 610–628 at 612–616.
  40. ^ Low Thia Kiang (Non-Constituency Member of Parliament), "Constitution of the Republic of Singapore (Amendment) Bill", Singapore Parliamentary Debates, Official Report (26 April 2010), vol. 87, col. 181–182ff.
  41. ^ Thio, "The Legislature and the Electoral System", p. 305.
  42. ^ Singapore Constitution, Art. 39(1)(c).
  43. ^ Goh Chok Tong (Prime Minister), "Constitution of the Republic of Singapore (Amendment No. 2) Bill", Singapore Parliamentary Debates, Official Report (29 November 1989), vol. 54, col. 705ff.
  44. ^ Singapore Constitution, Fourth Schedule, s. 3(2).
  45. ^ Paulin Tay Straughan (Nominated Member of Parliament), "Constitution of the Republic of Singapore (Amendment) Bill", Singapore Parliamentary Debates, Official Report (26 April 2010), vol. 87, col. 53ff.
  46. ^ Law Society of Singapore v. Tan Guat Neo Phyllis [2008] 2 S.L.R.(R.) 239 at 310, para. 143.
  47. ^ Chan Sek Keong (2010), "Securing and Maintaining the Independence of the Court in Judicial Proceedings", SAcLJ: 229 at 231, 235–237.
  48. ^ Singapore Constitution, Art. 95(1).
  49. ^ a b c Michael Hor (2002), "The Independence of the Criminal Justice System in Singapore", Singapore Journal of Legal Studies: 497 at 501.
  50. ^ Singapore Constitution, Art. 95(2).
  51. ^ Singapore Constitution, Art. 22(1)(a).
  52. ^ Michael Hor (2002), "The Independence of the Criminal Justice System in Singapore", Singapore Journal of Legal Studies: 497 at 502
  53. ^ Singapore Constitution, Art. 98(1).
  54. ^ Jaclyn Ling-Chien Neo (2004), "Rule of Law Within a Non-Liberal 'Communitarian' Democracy: The Singapore Experience", in Randall Peerenboom (ed.), Asian Discourses on the Rule of Law – Theories and Implementation of Rule of Law in Twelve Asian Countries, France and the US, London; New York, NY: RoutledgeCurzon, pp. 183–224 at 188 {{citation}}: Text "isbn0-415-32613-3 (hbk.)" ignored (help).
  55. ^ Singapore Constitution, Art. 98(2)–98(4).
  56. ^ Singapore Constitution, Art. 94(3).
  57. ^ Michael Hor (2002), "The Independence of the Criminal Justice System in Singapore", Singapore Journal of Legal Studies: 497 at 506.
  58. ^ Singapore Constitution, Art. 111.
  59. ^ Subordinate Courts Act (Cap. 321, 2007 Rev. Ed.), ss. 9(1)–10(1).
  60. ^ Michael Hor (2002), "The Independence of the Criminal Justice System in Singapore", Singapore Journal of Legal Studies: 497 at 505.
  61. ^ Michael Hor (2002), "The Independence of the Criminal Justice System in Singapore", Singapore Journal of Legal Studies: 497 at 504.
  62. ^ a b c Chan Sek Keong (2010), "Securing and Maintaining the Independence of the Court in Judicial Proceedings", SAcLJ: 229 at 231, 235–237.
  63. ^ Singapore Constitution, Art. 111(3).
  64. ^ Jaclyn Ling-Chien Neo (2004), "Rule of Law Within a Non-Liberal 'Communitarian' Democracy: The Singapore Experience", in Randall Peerenboom (ed.), Asian Discourses on the Rule of Law – Theories and Implementation of Rule of Law in Twelve Asian Countries, France and the US, London; New York, NY: RoutledgeCurzon, pp. 183–224 at 190, ISBN 0-415-32613-3 (hbk.) {{citation}}: Check |isbn= value: invalid character (help).
  65. ^ Michael Hor (2002), "The Independence of the Criminal Justice System in Singapore", Singapore Journal of Legal Studies: 497 at 502.
  66. ^ Report of the Commission of Inquiry into Allegations of Executive Interference in the Subordinate Courts [Cmd. 12 of 1986; Chairman: T.S. Sinnathuray], Singapore: Printed for the Government of Singapore by the Singapore National Printers, 1986, OCLC 16872490.
  67. ^ Singapore Constitution, Art. 95(2).
  68. ^ Mohammad bin Sabtu v. Public Prosecutor [2012] SGHC 163 at 15, para. 19.
  69. ^ Dr. Bonham’s Case (1610) 8 Co. Rep. 114, Court of Common Pleas (England).
  70. ^ Singapore Constitution, Art. 93.
  71. ^ Chan Hiang Leng Colin v. Public Prosecutor [1994] 3 S.L.R.(R.) 209 at 231, para. 50.
  72. ^ Singapore Constitution, Art. 49(3).
  73. ^ Maintenance of Religious Harmony Act (Cap. 167A, 2001 Rev. Ed.) ("MRHA"), s. 18.
  74. ^ Chng Suan Tze v. Minister for Home Affairs [1988] 2 S.L.R.(R.) 525.
  75. ^ Constitution of the Republic of Singapore (Amendment) Act 1989 (No. 1 of 1989); Internal Security (Amendment) Act 1989 (No. 2 of 1989). See Speech during the Third Reading of the Constitution of the Republic of Singapore (Amendment) Bill, Singapore Parliamentary Debates, Official Report (25 January 1989), vol. 52, col. 530; Speech during the Third Reading of the Internal Security Act (Amendment) Bill, Singapore Parliamentary Debates, Official Report (25 January 1989), vol. 52, col. 556.
  76. ^ Lee Mau Seng v. Minister for Home Affairs [1971-1973] S.L.R.(R.) 135.
  77. ^ Thio Li-ann (2012), "The Judiciary", A Treatise on Singapore Constitutional Law, Singapore: Academy Publishing, pp. 451–567 at 537, ISBN 978-981-07-1516-8 (pbk.) {{citation}}: Check |isbn= value: invalid character (help).
  78. ^ S. Jayakumar (Minister of Law), "Constitution of the Republic of Singapore (Amendment) Bill", Singapore Parliamentary Debates, Official Report (25 January 1989), vol. 52, col. 463–474ff.
  79. ^ Anisminic Ltd v. Foreign Compensation Commission [1969] 2 A.C. 147, House of Lords (England & Wales).
  80. ^ Chan Sek Keong (2010), "Judicial Review – From Angst to Empathy: A Lecture to Singapore Management University Second Year Law Students", Singapore Academy of Law Journal: 469 at 477, para. 19.
  81. ^ Thio, "The Judiciary", p. 538–539.
  82. ^ Thio Li-ann (2012), "Constitutional Principles", A Treatise on Singapore Constitutional Law, Singapore: Academy Publishing, pp. 155–222 at 162–163, ISBN 978-981-07-1516-8 (pbk.) {{citation}}: Check |isbn= value: invalid character (help).
  83. ^ Thio, "The Judiciary", p. 539.
  84. ^ Lee Hsien Loong v. Review Publishing Co Ltd [2007] 2 S.L.R.(R.) 453 at 490, para. 98.
  85. ^ Chng Suan Tze, p. 557, para. 94.
  86. ^ Lee Hsien Loong v. Review Publishing Co Ltd, p. 490, para. 98.
  87. ^ Singapore Constitution, Art. 35(8).
  88. ^ Tan Guat Neo Phyllis, p. 311, para. 144.
  89. ^ Thio Li-ann (2012), "Constitutional Principles", A Treatise on Singapore Constitutional Law, Singapore: Academy Publishing, p. 161, ISBN 978-981-07-1516-8 (pbk.) {{citation}}: Check |isbn= value: invalid character (help).
  90. ^ ”[T]he President cannot initiate action on his own”: White Paper [Cmd. 10 of 1988], Singapore: Printed for the Govt. of Singapore by the Singapore National Printers, 1988 {{citation}}: Cite has empty unknown parameter: |1= (help).
  91. ^ Singapore Constitution, Art. 21(2).
  92. ^ Thio Li-ann (2012), "The President", A Treatise on Singapore Constitutional Law, Singapore: Academy Publishing, p. 395, ISBN 978-981-07-1516-8 (pbk.) {{citation}}: Check |isbn= value: invalid character (help).
  93. ^ Goh Chok Tong (First Deputy Prime Minister), "“Constitution of the Republic of Singapore (Amendment No 3) Bill”", Singapore Parliamentary Debates, Official Report (4 October 1999), vol. 56, col. 461
  94. ^ Goh, “Constitution of the Republic of Singapore (Amendment No 3) (4 October 1999) column=462
  95. ^ Lee Siew Choh (Non-Constituency Member of Parliament), "“Constitution of the Republic of Singapore (Amendment No 3) Bill”", Singapore Parliamentary Debates, Official Report (4 October 1999), vol. 56, col. 491
  96. ^ Thio, "The President", p. 412.
  97. ^ Singapore Constitution, Art. 19(3)(a) and 19(3)(d).
  98. ^ Singapore Constitution, Art. 19(3)(c).
  99. ^ Singapore Constitution, Art. 22J.
  100. ^ Singapore Constitution, Art. 22K.
  101. ^ Singapore Constitution, Art. 22F
  102. ^ Singapore Constitution, Art. 21(2).
  103. ^ Singapore Constitution, Art. 22A.
  104. ^ Goh, “Constitution of the Republic of Singapore (Amendment No 3) (4 October 1999) column=466
  105. ^ Singapore Constitution, Art. 22, Art. 22A and Art. 22C.
  106. ^ Singapore Constitution, Art. 22H.
  107. ^ Thio, "The President", p. 415.
  108. ^ Singapore Constitution, Art. 69.
  109. ^ Thio Li-ann (2012), "The Presidential Council for Minority Rights", A Treatise on Singapore Constitutional Law, Singapore: Academy Publishing, p. 361, ISBN 978-981-07-1516-8 (pbk.) {{citation}}: Check |isbn= value: invalid character (help).
  110. ^ Singapore Constitution, Art. 78(6)(c).
  111. ^ Thio Su Mien (1969), "[The Presidential Council:] Paper I", Singapore Law Review, 1: 2.

Further reading

Articles and websites

Books

  • Chan, Helena H[ui-]M[eng] (1995), "The Judiciary", The Legal System of Singapore, Singapore: Butterworths Asia, pp. 41–68, ISBN 978-0-409-99789-7 (pbk.) {{citation}}: Check |isbn= value: invalid character (help).
  • Kwek, Mean Luck [et al.], eds. (2006), Hall of Justice: Supreme Court Singapore, Singapore: Supreme Court of Singapore, ISBN 978-981-05-5356-2 {{citation}}: |first= has generic name (help)CS1 maint: multiple names: authors list (link).
  • Tan, Kevin Y[ew] L[ee] (2011), "Without Fear or Favour: The Judiciary", An Introduction to Singapore's Constitution (rev. ed.), Singapore: Talisman Publishing, pp. 107–131, ISBN 978-981-08-6456-9 (pbk.).
  • Tan, Kevin Y[ew] L[ee]; Thio, Li-ann (2010), "The Judiciary", Constitutional Law in Malaysia and Singapore (3rd ed.), Singapore: LexisNexis, pp. 505–630, ISBN 978-981-236-795-2 (hbk.).
  • Thian, Yee Sze; Chong, Chin Chin; Lim, Sharon (2002), In Session: Supreme Court Singapore: The Building, her Heritage and her People, Singapore: Supreme Court of Singapore, ISBN 978-981-047-671-7.
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