Founding Moments for the Republic of Singapore: Tension between the de Jure v de Facto Status of the Constitution
One of the most recent texts on constitutional law in Singapore describes it as an unlikely nation with an abrupt beginning.15 When Singapore separated from Malaysia - its first true post-colonial independent moment - it was left in a judicial power, including that of final adjudication, in accordance with the provisions of this Law.' Article 5 states that: ‘The socialist system and policies shall not be practised in the Hong Kong Special Administrative Region, and the previous capitalist system and way of life shall remain unchanged for 50 years.' Article 8 states that: ‘ The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region.' The use of the word ‘authorise' in art 2 has recently been read by the PRC government to mean that: ‘ The high degree of autonomy of the HKSAR [Hong Kong Special Administrative Region] is not full autonomy, nor a decentralised power...
It is the power to run local affairs as authorised by the central leadership.' White Paper, State Council of the People's Republic of China, ‘The Practice of the “One Country, Two Systems” Policy' (n 11).13 HKSAR v Ma Wai Kwan David [1997] 1 HKLRD 761, [1997] 2 HKC 315 (CA); and Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4, [1999] 1 HKLRD 315 (CFA). See also Ng Ka Ling v Director of Immigration (No 2) (1999) 2 HKCFAR 141, [1999] 1 HKLRD 577 (CFA). Such confrontations were foreshadowed by commentators during the drafting of the Basic Law of Hong Kong (M Davis, Constitutional Confrontation in Hong Kong: Issues and Implications of the Basic Law (Palgrave, 1990)).
^Interpretations of the Basic Law by the NPCSC are issued pursuant to art 67(4) of the Chinese Constitution, which gives the NPCSC the power ‘to interpret statutes’.
‘Interpretation' of statutes in the Chinese legal system can include the amendment of text; see Simon Marsden, ‘Constitutional Interpretation in Hong Kong: Do Common Law Approaches Apply When the National People's Congress Standing Committee Interprets the Basic Law?' (2006) LAWASIA Journal 99.15 See Kevin Tan, The Constitution of Singapore: A Contextual Analysis (Hart Publishing, 2015) 1. See also Andrew Harding, ‘Does the “Basic Structure” Doctrine Apply in Singapore's Constitution? An Inquiry into Some Fundamental Constitutional Premises' in Jaclyn L Neo (ed), Constitutional Interpretation in Singapore: Theory and Practice (Routledge, 2016) 32, who argues that the beginning of Singapore was not a ‘moment, but ‘a process of adjustment which may be regarded as ongoing even after fifty years' (at 36 and 39).
constitutional vacuum. The state-level constitution that applied under the Malaysian Federation Constitution to Singapore no longer extended to Singapore. Therefore, one of the first projects within the nation-building exercise should have been the filling of this gap. The Cabinet were even advised to consult members of governments in the Commonwealth on questions of post-independence constitutional design.
However, soon after, the constitutional project was paused. In the words of Lee Kuan Yew, he felt the need to take a more considered and gradual approach to questions of constitutional design.[133] There could have been a level of uncertainty felt about entrenching a particular constitutional design at such an early stage in the nation’s unexpected independence, especially as political power had not been consolidated to a clear majority of one political party at a level that was considered desirable for making important socio-economic decisions to stabilise the nation.[134] The approach was thus a pragmatic one - while having a constitutional document was considered important, it was not yet in itself normatively desirable or paramount at that stage in the nation's history.
It was more functionally relevant in empowering the government to maintain economic progress, manage ethnic relations and consolidate political power in order to allow the government to achieve the latter two imperatives.[135] It could be that was achieving the latter imperatives was seen as the source of legitimacy of public power rather than the constitutional framework under which such decisions were made.Given the relatively pragmatic genesis of the Constitution, there remain fundamental questions to be resolved about its true effect and impact within Singapore: what is its constitutional identity? Article 4 of the Constitution purports to establish a form of constitutional supremacy.[136] Pursuant to Article 5, the Constitution can be amended by a two-thirds majority in Parliament. On the face of it, this appears to ‘entrench’ the Constitution by imposing this high parliamentary threshold for amendment.[137] However, this needs to be considered against the fact that in Singapore’s Westminster parliamentary system, the People's Action Party (PAP) of Singapore has held such a majority (convincingly) since Singapore’s independence. Parliament is unicameral with no convention for a shadow opposition party and voting is done via the whip system.
Various alternative amendment provisions have been introduced from time to time that would shift power to the Elected Presidency and to the citizens via the use of national referenda. However, these options, while introduced into the text of the Constitution, have not been brought into force.21 Until they are, the power to amend the Constitution remains with the executive - either qua executive in the initiation and design of changes or qua the majority that passes the amendments in Parliament. It is in this context that commentators have come to the conclusion that Singapore exemplifies a particularly strong form of political constitutionalism.22 Therefore, while Singapore purports to be a de jure constitutional supremacy, it is in fact a de facto parliamentary supremacy.
As a result, the question of the true nature of the Constitutional document has been a recurring one - most importantly, on questions of constitutionality of legislative and executive action and on the issue of constitutional amendment and entrenchment.The supremacy of the Constitution was tested most prominently in 1989 in a series of cases involving the Internal Security Act.23 The case involved a group of individuals who had been detained without trial under the Internal Security Act for their involvement in an alleged Marxist conspiracy. They sought to judicially review their detention orders in the case of Chng Suan Tze v Minister for Home Affairs and Others.24 Their challenge was successful on narrow technical grounds
The Foundations and Traditions of Constitutional Amendment (Hart Publishing, 2016) for a comparative overview of amendment provisions. It is the dominance of the PAP in Parliament that makes these provisions unique.
21 The old art 5(2A) and the new arts 5A, 5B, and 5C introduced in 2016 (but which have yet to be brought into operation). See the ‘Entrenchment Framework’: Deputy Prime Minister Teo Chee Hean, ‘Second Reading, Constitution of the Republic of Singapore (Amendment) Bill’ (Prime Ministers Office Singapore, 7 November 2016), www.pmo.gov.sg/newsroom/speech-dpm-teo-chee- hean-2nd-reading-constitutional-republic-singapore-amendment-bill.
22 Kevin YL Tan, The Constitution of Singapore: A Contextual Analysis (Hart Publishing, 2015) ch 2; Li-ann Thio, ‘In Search of the Singapore Constitution: Retrospect and Prospect’ in Li-ann Thio and Kevin YL Tan (eds), Evolution of a Revolution: Forty Years of the Singapore Constitution (Routledge, 2008) 355; and Michael Dowdle and Kevin Tan, ‘Is Singapore’s Constitution Best Considered a Legal or Political Constitution?’ in Neo (n 15) 365-72.
23 Article 149 of the Constitution explicitly permits the possibility of detention without trial.
notwithstanding the obvious implications this has for the protection of the rights contained in pt IV of the Constitution (most importantly art 9, which requires that no deprivation of liberty is possible unless it is in accordance with the law).24 Chng Suan Tze v Minister for Home Affairs and Others [1988] 2 SLR(R) 525, which led to a constitutional amendment to art 149 of the Constitution. The new provision read: ‘I f, in respect of any proceedings whether instituted before or after 27th January 1989, any question arises in any court as to the validity of any decision made or act done in pursuance of any power conferred upon the President or the Minister by any law referred to in this Article, such question shall be determined in accordance with the provisions of any law as may be enacted by Parliament for this purpose; and nothing in Article 93 shall invalidate any law enacted pursuant to this clause.’ The effect of this amendment was to reset the law to the pre- Chng Suan Tze position. This amendment was tested (unsuccessfully) in the subsequent case of Teo Soh Lung v Minister for Home Affairs [1989] 1 SLR(R) 461, [1990] 1 SLR(R) 347. (the detention order had been signed and issued by the wrong member of the executive). However, it is the obiter dicta of the judgment that proved to be the trigger for what followed. The Court of Appeal held in Chng Suan Tze that it would be prepared to review the legality of detention orders on the normal grounds of judicial review. This led to a swift constitutional amendment to Article 149 of the Constitution, which, in effect, reset the position of the reviewability of detention orders to that which existed prior to Chng Suan Tze - namely, very narrow procedural grounds. In doing so, the constitutional amendment furthered the idea of pragmatism over principle (in this case the principle that all power has legal limits and the rule of law) embodied in the Chng Suan Tze obiter dicta.[138]
The discussion above has highlighted that depending on the precise shape and contours of the founding event of a jurisdiction, there may be fundamental constitutional questions left for resolution. The next section conceptualises a role for the courts in both jurisdictions in doing just this.
IV.