Making the Constitution Work: More Re-Making
The separation agreement ensured that there was no constitutional void and that the new nation-state would not have its constitutional status impugned, not least by Malaysia. Independent Singapore’s initial constitution-making was not the wholesale process of replacing the previous constitutional order.
The political rupture was defining but there was no Kelsenian legal disruption as the extant constitutional order largely continued. Put simply, it was change amid continuity. In fact, elements of the previous constitutional order were preserved in the transition. To be clear, this was not a situation where the French might say plus fa change, plus cest la meme chose (or, loosely translated, the more things change, the more it’s the same thing). The constitutional changes were neither cosmetic nor revolutionary.However, the familiarity with the 1963 State Constitution can be said to provide a security blanket so that there would be no constitutional upheaval. Singapore’s leaders who played a leading role in the making of the new Constitution were conscious that the Constitution must be congruent with the political changes. Fundamentally, it was about Singapore’s independence and sovereignty. As discussed above, the initial constitution-making and the subsequent amendments to the Constitution were carried out using the amendment process provided for in the 1963 Constitution. In so doing, the 1965 Constitution was conferred legitimacy.
Secession from Malaysia was not a revolution notwithstanding a change in constitutional order. However, the role that Lee Kuan Yew and his leading lieutenants played in ensuring a relatively smooth constitutional transition ensured that Singapore did not suffer from debilitating political contestation and ruptures that have unfortunately characterised many post-colonial societies. From the outset of independence, the Singapore leadership recognised the vital role of the rule of law for a new constitutional democracy.
The implementation of the 1965 Constitution and its amendments were executed within the extant legal order and their requirements was one example of this legal scrupulousness.However, it was only in 1969 that provisions on the Singapore judiciary were finally settled. Recall that section 8 of the Constitution and Malaysia (Singapore Amendment) Act provided, inter alia, for appeals from the High Court of Singapore ‘shall continue to lie to the Federal Court of Appeal of Malaysia and then to the Privy Council in like manner’ until ‘other provision is made by the Legislature of Singapore’. This was intended to be a transitional measure primarily to secure the continuity of judicial function and the administration of justice from Singapore Day. That meant that the Malaysian judiciary was part of independent Singapore’s judicial structure and hierarchy. Odd as it was, this was repeated in section 11 of the RSIA.[631] It was only in 1969 that this unusual anomaly and reliance on the Malaysian judiciary was rectified through the Supreme Court of Judicature Act. In a brief second reading speech, Law Minister EW Barker acknowledged that the Bill which
Provides a proper basis for the administration of justice in our Courts... should really have been introduced soon after we left Malaysia. Unfortunately, the many and varied Problems which we had to deal with upon leaving Malaysia had forced us to continue with the existing system of administration of justice until the present day.
He stated that the Bill set out to align the consequences that flow from Singapore becoming independent necessitating an independent system of administration of justice separate from Malaysia’s which was introduced when Singapore was part of Malaysia and which had since continued in use. The Bill was intended to revert to the position before Singapore joined Malaysia.[632]
Rather significantly, the making of the 1965 Constitution did not appeal to constituent power.
Neither in the working of the 1965 Constitution was reliance made of the constituent power of the state and that any constituent power so claimed by the new state stood above the constituted powers established. Established procedures were faithfully adhered to in amending the constitutional text. It is thus no surprise that the 1965 Constitution is ‘sticky’, possessing all the provisions of its 1963 predecessor.[633] This should not be mistaken as a cut-and- paste job. The 1963 Constitution was relatively generous in granting the state of Singapore sufficient autonomy and agency within the Malaysian federation. It can be said to have provided the learning phase for how the 1965 Constitution would work and what improvements there could be.Close to six decades later, the basic framework of the Singapore Constitution remains largely intact although the constitution has been regularly amended. Some key changes include the formation of the Presidential Council of Minority Rights in 1970 to protect against legislation that would discriminate on the grounds of race, language or religion; the entrenchment of Singapore’s state sovereignty in 1973; the restoration of a two-thirds majority requirement to pass constitutional amendments in 1979; the introduction of an elected presidency in 1991;[634] and constitutional innovations that have created a uniquely Singaporean legislature through the introduction of schemes such as the non-constituency Member of Parliament (1984), the Group Representation Constituency (1988), and the Nominated Member of Parliament (1990).[635] The elected presidency scheme, as an intra-branch check on the executive, has been responsible for extensive and regular amendments, including the most significant changes in 2016 and 2017.[636]
As constitutions comprise the supreme law, special majorities are often needed for their amendments in order to protect against frequent change. Moreover, constitutionalism is predicated on a certain level of endurance. Yet it been shown that written constitutions do not endure in most countries.[637] Singapore’s 1965 Constitution has endured relatively well - no doubt due to the ruling party’s political dominance and longevity but also to the care in updating the Constitution to keep it relevant and fit for purpose.
VI.