A Prolegomenon: Imperative of Constitution-Making and Creating a New Constitutional Order
There are several widely accepted functions of constitutions, including providing for a bill of rights, structuring the institutions of government and their powers, creating a new citizenry, regulating the relationship among branches of government, and limiting the power of the state.[556] In this regard, constitutionalism, or the limitation of government by law, is an important function of a constitutional order buttressed by a written constitution.
As the fundamental code, a constitution can and should be regarded as the operating system and the driving force behind a country's institutional design. It provides the foundational rules that breathes life into the organs of state and their relationship with each other, as well as the relationship between the state and the individual, often through a bill of rights with a pride of place.The constitution is about people coming and working together to establish a union based on shared purposes and disciplined by shared values. For instance, Hegel defined ‘right' (recht) as the existence of the free will. A philosophy of right is necessarily a philosophy of freedom. How freedom is manifested is intimately connected with how people relate to each other and construct social and political institutions.[557] This Hegelian notion of constitutions being drawn from and inspired by a country's history, culture, and ethos speak to the challenges that often arise when constitutions are being written or transplanted. This symbolic function of constitutions is, in essence, about unifying people within a constitutional order. This requires a shared consciousness, often undergirded by shared values and norms. How deeply-divided societies draft a constitution and whether it can bridge the abiding differences is a vital challenge of constitution-making. For example, Hanna Lerner makes the case for an incrementalist approach to constitution-making that can enable societies riven by deep internal disagreements to either enact a written constitution or function with an unwritten one.
Incrementalist strategies attempted include the avoidance of clear decisions, the use of ambivalent legal language, and the inclusion of contrasting provisions in the constitution.[558]The formation of a nation-state is almost invariably accompanied by constitution-making, against the backdrop of a founding moment which is often denoted by crises for the fledgling political entity. The constitution (whether written or unwritten) constitutes the nation-state, and the nation-state, in turn, constitutes the constitution. In other words, the nation-state is formed under the auspices of its founding charter, often written, and confirmed by the constitutional sanctions of its political ideology, the national purpose (the raison d’etre), and the core values of the people.
The pre-colonial and colonial-era state formation often creates a degree of path dependency premised on history, politics, and economics for the postcolonial nation-state. In that sense, short of a searing rebellion or revolution, new nation-states are often not made from scratch and so are their constitutions. Many post-colonial states and their constitutions are not tabula rasa. However, constitutions need to be sensitive to and manifest the nationalism that often undergirds state- and identity-formation in the arduous task of nation-building. In that sense, constitution-making is as much about state-building as it is about nation-building.[559] The geopolitical realities and constraints that impinge upon the formation of a new nation-state cannot be ignored. The larger forces at play such as the broader international economic and political context provide the cauldron in which constitutions are made (and re-made). They also lead to profound differences in constitution-making in the postcolonial world.[560]
It is often said that wars compel states to make constitutions.[561] Indeed, constitution-making is often done under great pressure of time and resources.
Nevertheless, constitutions are a product and a norm of independence, whether violent or not. It is a solemn declaration to the world that a new nation-state has been birthed and is free from foreign control. As a constitution is not a mere accoutrement of sovereignty, the focus then necessarily shifts to how power is organised and structured in a new polity. Constituent power, broadly conceived, is the belief that all political authority, including that of the constitution, must find its source in the people. In Loughlin’s conception, constituent power articulates the power of the multitude and is the juristic expression of the democratic impetus.[562] Thus, constitution-making is an expression of the sovereign act of a people in a necessary political enterprise of institutional design and establishing a constitutional order. Constitutions are, in Linda Colley’s words, ‘always more than themselves, and more too than a matter of law and politics’.[563] They are also a symbol of modernity even as they wield a mix of local and foreign influences in organising power, granting rights, and differentiating themselves from other attempts at self-definition.That constitution-making is a necessary rite of passage for a new nation-state or a new constitutional order is undisputed. Thus, how constitutions are made matters immensely.[564] Singapore’s constitution-making is unique and it must be so given the circumstances in which it came to be an independent and sovereign nation-state. Following Singapore’s hurried separation from Malaysia on 9 August 1965, a patchwork of a constitution was put together. There was no time to cobble together a brand new constitutional text. However, the constitutional drafters did not have to start from scratch. In the six years prior to independence, Singapore had two earlier constitutions: the 1958 Constitution[565] for self-governing Singapore, and the 1963 State Constitution[566] when Singapore was part of the Federation of Malaysia.[567]
The 1958 Constitution provided the basic government structure for a selfgoverning Singapore with a fully elected 51-seat Legislative Assembly.
It replaced the Singapore Colony Order in Council 1955, more popularly known as the Rendel Constitution, which had come into force on 8 February 19 5 5.[568] Singapore had full internal governing powers except for matters pertaining to foreign affairs, internal security and defence. As with the 1958 Constitution, the 1963 Constitution was granted by the British Parliament to enable Singapore to become part of the newly constituted Federation of Malaysia, which was established on 16 September 1963 (also known as Malaysia Day).[569] As Singapore was a constituent part of the federation, the 1963 State Constitution was subordinate to the Westminster-modelled federal Constitution of Malaysia of 1963 with respect to federal matters affecting Singapore.As a Westminster-styled constitution, Singapore’s 1965 Constitution follows the well-established template of providing for the widely accepted functions of constitutions including a bill of rights, the separation of governmental powers, and creating a new citizenry. Formal constitutionalism is not in doubt. There is also the commitment to specific shared values such as representative democracy, multi-racialism, meritocracy, incorruptibility in governance, and fiscal prudence. Given the commitment to and quest for a Malaysian Malaysia when Singapore was part of the Malaysian federation, independent Singapore’s founding charter seeks to establish a Singaporean Singapore where citizenship (rather than one’s race) defines one’s rights and responsibilities and is the putative social glue in unifying people within the new constitutional order.
At the second reading of the Republic of Singapore Independence Bill on 22 December 1965, Prime Minister Lee Kuan Yew indicated that the intent was to have one complete document instead of ‘the Constitution which is now in four Parts’ viz the Federation of Malaysia Constitution, the State of Singapore Constitution, the Republic of Singapore Independence Act, and the Constitution (Amendment) Act.[570] Prime Minister Lee stated at the outset of his seconding reading speech: ‘we have taken the [1963] State Constitution as the basis for the Constitution for Singapore’.[571] Rather than enact a brand-new constitution, Parliament instead breathed life into the extant constitution by re-purposing it for a sovereign, independent nation-state.
Thus, the first constitutional document passed by independent Singapore’s Parliament in December 1965 was effectively a constitutional amendment bill - specifically, a bill to amend the extant constitution of Singapore when she was a state within the Malaysian federation.The Constitution (Amendment) Act[572] provided for cosmetic changes necessary for an independent state which was previously part of the Malaysian constitutional order. As such, the Act provided for the obvious changes such as the ‘Yang di-Pertuan Negara’ to ‘President’, the ‘Legislative Assembly’ to ‘Parliament’, and ‘State Advocate-General’ to ‘Attorney-General’. As a sovereign republic, the Act also provided for the election of the President (head of state) by Parliament, including a transitional provision for the then Yang di-Pertuan Negara to be the President as if he had been duly elected by Parliament. More significantly, the Act also removed the requirement for a casual vacancy of the seat of a Member of Parliament to be filled within three months of the date of the vacancy (section 7). It also removed the requirement for a Bill to amend the Constitution to be passed by a two-thirds majority (section 8). A little-noted significance of the Constitution (Amendment) Act is that it also renamed the 1965 State of Singapore to the Republic of Singapore, the official name of the sovereign and independent Singapore.[573]
To complete the formalities necessary for the change in constitutional order, Parliament also passed the Republic of Singapore Independence Bill on 22 December 1965.[574] In essence, this Act (RSIA) enabled the Singapore Government and the legislature to take over the executive and legislative powers in Singapore following the independence of Singapore and of her ceasing to be part of Malaysia. Provision was also made in the RSIA for the continuance in force of certain provisions of the Malaysian federal constitution and for the exercise of powers under those provisions.[575] This included the power of pardon, exercisable by the President, on the advice of the Cabinet.
The Act also stated that Malay, Chinese, Tamil and English would be the official languages in Singapore, with Malay as the sole national language. It also provided that, unless otherwise ordered, any requirement for the appointment of persons from Malaysia to statutory boards and other bodies in Singapore would cease to have effect. Power was given to the President to make modification orders to bring existing written laws in conformity with the status of an independent Singapore.Similarly, the fundamental liberties were incorporated into the 1965 Constitution by way of section 6 of the RSIA. However, the right to property was specifically excluded. In land-scarce Singapore, such a right would hinder national development as compulsory land acquisition for public purpose would be legally challenging, if next to impossible.[576] This enabled Singapore to subsequently pass the Land Acquisition Bill[577] which had spelt out that where land was compulsorily acquired for public purpose, no compensation would be payable to the owner for any appreciation in value of the land which had been brought about by development expenditure of the Government. In addition, in the interest of the administration of justice, section 11 of the RSIA provided for the continuance of appeals from the High Court in Singapore to the Federal Court (in Kuala Lumpur) and to the Judicial Committee of the Privy Council in London.
A quick recap at this juncture is opportune. After the bruising sensation of the constitutional moment had subsided, Singapore went about the gargantuan task of making independence a political and economic reality and success. Although there was talk, no constituent assembly was established to shape and frame the Constitution and to engage the population on the fledgling nation-state’s supreme law post-independence.[578] The first set of amendments to the Constitution was only promulgated four months after independence on 22 December 1965 through the Constitution (Amendment) Bill and the Republic of Singapore Independence Bill, both having retrospective effect to Singapore Day.[579] Besides Prime Minister Lee Kuan Yew, who took the House through the readings of both Bills, not even a single legislator joined the debate. The two Bills were passed narrowly and identically: 36 ayes and 15 abstentions.[580] The abstentions were supplied by the legislators from the opposition Baris Socialis party which had boycotted Parliament.[581]
In some respects, independent Singapore’s first constitution of 1965 was not a significant act of constitution-making; it was, in form and substance, a pragmatic attempt at constitutional improvisation. At the opening of the first Parliament on 8 December 1965, the Yang di-Pertuan Negara (head of state) Inche Yusof bin Ishak described the impending constitutional processes as securing a ‘better command of our own separate destiny’.[582] Six years earlier in December 1959, Prime Minister Lee had described Singapore’s self-government as a movement ‘away from the colonial past, towards an independent future and our tryst with destiny’.[583]
It was only on 31 March 1980 that the ‘first authentic text of the Singapore Constitution’,[584] which closely resembles the present-day Constitution, was published.
Pursuant to the Constitution (Amendment) Act 1979, which came into force on 4 May 1979, all constitutional enactments between 1965 and 1979 were consolidated into one document and published as the 1980 Reprint of the Constitution of the Republic of Singapore.[585] Under section 8 of the Constitution (Amendment) Act 1979, a new Article 93 (now Article 155) of the Constitution of Singapore empowered the Attorney-General,
with the authority of the President, as soon as may be after... [4 May 1979 to] cause to be printed and published a consolidated reprint of the Constitution of Singapore. into a single, composite document to be known as the ‘Reprint of the Constitution of the Republic of Singapore...’
This was the first time there was a virtually complete text of the provisions of the 1963 Constitution, as modified by secession and subsequent amendments. Even then, sections 7 and 8 of the RSIA on the national language (Malay) and official languages (Malay, Mandarin, Tamil, and English) and the presidential grant of the power of pardon were not incorporated into the 1980 Reprint.
III.