Introduction: Repurposing an Extant Constitution
It was an unusual start for a fledgling nation-state. Parliament sat for the first time only some four months after independence. No new constitution was specially drafted; instead, the first (and only) constitution of independent Singapore was to be found in separate constitutional and legislative enactments of Malaysia and Singapore.
As the canonical legal text, independent Singapore's 1965 Constitution1 did not have an elaborate beginning on Singapore Day (9 August 1965). There was no fanfare at its promulgation. In fact, it was muted. Probably few even realised that independent Singapore had a new Constitution to signify and to usher in a change of constitutional orders. The new Constitution essentially consolidated provisions from Singapore's 1963 state constitution and Malaysia's federal constitution, the latter required deliberate and conscious selection.For an improbable nation-state, the concerns of existential survival were top of the agenda against the backdrop of grave uncertainty and a palpable sense of foreboding of the viability of an independent Singapore. Singapore's founding prime minister, Lee Kuan Yew, had once described the idea of an independent Singapore as a ‘political, economic and geographical absurdity'.2
*I thank Dr Mara Malagodi for her detailed insightful critique of an earlier draft. Professor Bui Ngoc Son also provided helpful feedback when the essay was first presented. All errors and inadequacies remain mine alone.
1 Constitution of the Republic of Singapore 1965 (2020 revised edn), in operation from 31 December 2021.
2 Quoted in Alex Josey, Lee Kuan Yew: The Crucial Years (Marshall Cavendish, 2012) 159.
The Cold War was writ large in the geo-political background and it profoundly shaped domestic political developments that eventually led to the independence of Singapore.
Britain was in the throes of evaluating its imperial role in Southeast Asia and facilitated the formation of new post-colonial states in the decolonisation process.[543] The Vietnam War was raging and the fear of communism a real existential concern.[544] Furthermore, Indonesia’s President Sukarno was pursuing his ‘Konfrontasi’ (or Confrontation, 1963-1966) in vehement opposition to the ‘neo-colonialist’ formation on 16 September 1963 of the Federation of Malaysia through the merger of Malaya, Sarawak, North Borneo (Sabah), and Singapore.[545] Even within the Federation, all was not well. For Singapore, the merger was an unhappy union from the get-go. There were deep-rooted differences between the state government in Singapore and the federal government in Kuala Lumpur over how government, politics, and society ought to be organised as well as economic and financial arrangements. On 9 August 1965, Singapore separated from Malaysia to become an independent and sovereign nation.Against such a turbulent climate, the survival of constitutional democracy and constitutionalism in a fledgling nation-state seemed secondary to the quotidian concerns of eking out a living and ensuring that Singapore’s independence was not unviable and that she did not have to re-join the federation.[546] As then Attorney-General VK Rajah observed, ‘[Singapore’s] Constitution did not have a storied birth. There were no grand speeches by founding fathers at constitutional conventions. We came into nationhood suddenly, and needed a working Constitution in short order’.[547] Former Singapore Chief Minister David Marshall called the 1965 Constitution the ‘untidiest and most confusing constitution that any country has started life with’[548] Scholar Kevin Tan puts it pithily that Singapore ‘has no real constitution to call its own’[549] For scholar RH Hickling, ‘Singapore was cast adrift in a friendless world, with the wreckage of a constitution designed for its existence as a state within a federation.
That 1963 Singapore Constitution had obviously to be the basis for an independence constitution’.[550]The hurried path to independence undoubtedly necessitated the quick repurposing of substantial portions of the 1963 State of Singapore Constitution for the 1965 Constitution of independent Singapore. The 1963 State Constitution had replaced the 1958 State of Singapore Constitution which was granted when Singapore became a self-governing state.[551] The 1963 State Constitution had prescribed the structure of Singapore’s Government and key institutions. Moreover, most of the provisions in the 1963 State Constitution were largely the same as the 1958 Constitution, particularly those relating to the legislature, the executive, public administration as well as the special position of the Malays. In other words, Singapore had a considerable amount of autonomy in matters over its internal administration as part of its terms of entry into the federation.[552]
Today, the 1965 Constitution is not the only constitutional instrument formally recognised as the founding documents of independent Singapore. Singapore’s constitutional framework formally recognises two other constitutional instruments viz the Independence of Singapore Agreement 1965[553] and the Republic of Singapore Independence Act 1965 (RSIA).[554] The Independence Agreement comprises the proclamation of Singapore by Singapore’s and Malaysia’s prime ministers, the independence agreement between Singapore and Malaysia, and draft amendments to both the Constitution of Malaysia and the Malaysia Act 1963. The RSIA provided for, inter alia, certain provisions of the federal constitution of Malaysia to continue being in force in Singapore, with appropriate modifications. The critical provisions in the Independence of Singapore Agreement 1965 and the RSIA have been incorporated into the present-day Constitution that Singaporeans are familiar with.
However, the decision to not formally amalgamate them into one comprehensive document is deliberate and is of constitutional importance.This chapter examines the making of Singapore’s 1965 Constitution and its two allied founding documents - the Independence of Singapore Agreement 1965 and RSIA.[555] These three documents have endured as the composite founding charter since 1965. While skilful drafting mattered immensely, constitution-making in Singapore was fundamentally concerned with ensuring that the substantive legality of Singapore’s independence was secure and robust enough to withstand legal scrutiny. Constitution-making is also about the prescient ability of the founding documents to anticipate and make provisions for over-the-horizon issues while also providing the essential framework for effective government.
This chapter argues that Singapore’s improvised 1965 Constitution was largely fit for purpose and provided the foundational basis for a new nation-state. The founding documents sought to keep faith with the basic requirements of a functional democracy. Singapore’s racial heterogeneity meant that upon independence, it was a state desperately in search of a nation - the Singaporean nation. The substantive contents of constitution-making were directed towards creating a nation-state out of citizens who hailed from disparate nations. The challenges of pluralism had to be addressed if the centrifugal forces of diversity were to not rear its ugly head.
The 1965 Constitution was adopted and implemented without too much difficulty. Parliament was dominated by one party, the People’s Action Party. The new Constitution was largely the constitution that Singapore had when it was part of Malaysia between 1963 and 1965. The 1963 State Constitution was arguably a product of elite consensual decision-making in London and in Singapore. It had a useful trial run during Singapore’s sojourn in the Malaysian federation, which eased Singapore’s path to constitutional autochthony. Put simply, Singapore’s hasty secession from Malaysia was not a revolution. Nevertheless, Singapore’s political leadership did use their charismatic leadership and astute knowledge of the law and of the transformational significance of constitutions to ensure a relatively smooth constitutional transition. From the outset of independence, the Singapore leadership was mindful and sensitive to the need for a semblance of the rule of law for a new constitutional democracy. The implementation of the 1965 Constitution and its amendments were therefore carefully executed within the extant legal order and their requirements.
II.