The Process of Repurposing a Constitution

‘Constitutional re-arrangements’ were set in motion as early as June 1965 and moved swiftly by early August 1965 for the separation of Singapore from Malaysia. Prime Minister Lee Kuan Yew had by then concluded that ‘some method of disengagement’ with Malaysia had to be found given the unhappy state of affairs.^[586] Lee was clear that if there was no future re-integration with Malaysia, Singapore ‘must be prepared for the final possibility to act independently in extremis’.^[587] As he was to reflect later: ‘Singapore went for the substance of the divorce [from Malaysia], not its legal formalities.

The drafting of the Independence of Singapore Agreement 1965 was done with utmost secrecy. The intent was not to allow the British to intervene in Singapore’s negotiations with Malaysia over secession. The British were concerned that an independent Singapore may fall into the clutches of communism, the very reason for the British supporting Singapore’s incorporation into the Malaysian federation in September 1963 in the first place. EW Barker, the Law Minister, explained that he had to draft the separation documents in great secrecy.

The State Advocate-General (AG) would normally draft such legal documents for the Government. However, Barker feared that there might be leaks as the AG's junior staff would be involved in the drafting. Lee was clear that the Singaporean officials had to draft the necessary separation legal documents in order to set the parameters for the negotiations with the Malaysians.^[589] Barker, a Cambridge-trained lawyer, then took it upon himself to do the necessary research and drafted the necessary documents himself. For legal precedence, Barker relied on the British West Indies Act 196 2^[590] which had governed the break-up of the West Indies Federation.^[591]

As the Malaysian federal constitution did not have any provision for states to secede, Barker determined that a constitutional amendment-as an agreement for Singapore and Malaysia to separate-had to be drafted.

In Lee’s words, ‘we’ve pulled off a bloodless coup’.^[595] It was a bloodless coup on two counts. First, ‘no blood was spilled’ in Singapore’s separation from Malaysia despite the rapidly deteriorating relations between Singapore and Malaysia which saw racial riots in 1964 instigated by Malaysian ultra-nationalists. Second, the British were blindsided by the ‘constitutional coup’. When Singapore published the separation agreement in the government gazette^[596], Singapore’s relation­ship with Malaysia ‘change[d] irrevocably’.^[597] A new constitutional order was put in place. This was notwithstanding independent Singapore’s Government continuing to govern Singapore under its existing laws, which included the 1963 State Constitution and the relevant provisions of the Malaysian Constitution that were still applicable in Singapore. For Lee Kuan Yew, the separation was traumatic:

... every time we look on this moment when we signed this [separation] agreement which severed Singapore from Malaysia, it will be a moment of anguish because all my life I have believed in merger and the unity of these two territories.

In his memoirs, Lee wrote that he had let down several people in Malaysia as he had ‘aroused their hopes, and they had joined people in Singapore in resisting Malay hegemony, the root cause of our dispute’.^[599]

It is apposite to consider the significance of the 1963 State Constitution, which was annexed to the Malaysia Agreement, under which the United Kingdom relin­quished its sovereignty and jurisdiction in respect of North Borneo, Sarawak and Singapore and vested it in the new federation of Malaysia. In essence, the 1963 State Constitution provided, inter alia, a structure of government based on the separa­tion of powers, consisting of the constitutional Head of State (the Yang di-Pertuan Negara) who must act in accordance with the advice of the Cabinet; an executive consisting of the Head of State and the Cabinet; and the Legislature consisting of the Head of State and the Legislative Assembly. The Legislative Assembly had power to legislate on matters that were specifically provided for in the State Constitution. As for the judiciary, the Constitution provided for a high court sitting in Singapore as a constituent part of the federal judiciary. The 1963 State Constitution did not have any fundamental rights provisions, but Part II (‘Fundamental Liberties’) of the Malaysian Constitution was made applicable to Singapore. The fundamen­tal liberties were subsequently incorporated into the 1965 Constitution by way of section 6 of the RSIA. Article 52 of the 1963 State Constitution provided for constitutional supremacy.^[600]

Former Singapore Chief Justice Chan Sek Keong notes that Article 52 was crucial to the special status of the 1963 State of Singapore within the Malaysian federation. He suggests that this supremacy clause was inserted to ‘ensure that, within the territory of Singapore then, the Singapore Constitution was supreme in relation to matters specially reserved to Singapore under the Malaysia Agreement and the Malaysian Constitution’.

The 1963 State Constitution thus provided a ready ‘template’ for independ­ent Singapore’s constitution given that time was of the essence and there was no luxury of time to craft a brand new constitution. It was not ideal but political and constitutional pragmatism prevailed and dictated given the circumstances, ensuring that there was no gap as Singapore transitioned from one constitutional order to another. To reiterate, on Singapore Day, the Singapore Government continued to govern Singapore under the repurposed 1963 State Constitution as well as the provisions of the Malaysian Constitution applicable to Singapore, and existing laws.^[602]

The full extent of the 1965 Constitution also requires appreciating the impact of Malaysia’s Constitution and Malaysia (Singapore Amendment) Act. The key point is that this Act was the source of Singapore’s independence and sovereignty. Through this Act, Malaysia consented to Singapore’s secession from the federa­tion to become an independent and sovereign nation-state, and recognised as such by the Government of Malaysia. Second, the Constitution of Malaysia and the Malaysia Act ceased to have effect in Singapore except as otherwise provided for. Third, the Government of Singapore on and after Singapore Day retained its executive authority and legislative powers to make laws with respect to those matters provided for in the Malaysian Constitution.

Malaysian Parliament to make laws for Singapore were transferred not to the Legislature of Singapore but to the Government of Singapore.^63,64

Fourth, the original and appellate jurisdiction, the practice and procedure of the High Court and the subordinate courts of Singapore were the same as that exercised and followed immediately before Singapore Day. Appeals from the High Court continued to lie with the Federal Court of Appeal of Malaysia and then to the Privy Council.^[603] [604] [605] Fifth, as the Malaysian Constitution ceased to have effect in Singapore except as otherwise provided for, the fundamental liberties in Part II were not so provided, and ceased to apply to Singapore.^[606] Of significance is the Act's provision for the continuation in force of ‘all present laws' in force in Singapore, including the 1963 Singapore Constitution. This meant that the 1963 State Constitution ‘by sheer constitutional logic' became the constitution of inde­pendent Singapore as it ‘survived completely intact' during the constitutional transition.^[607]

It is now apt to further consider the RSIA's contribution to the 1965 Constitution. The long title of the RSIA states: ‘An Act to make provision for the Government of Singapore consequent on her becoming an independent and sover­eign republic separate from and independent of Malaysia'. In enacting the RSIA in December 1965, Singapore's Legislative Assembly sought to follow through on Singapore's independence for the continuity of the existing laws and the adoption of some provisions of the Malaysian Constitution following Singapore's secession.

The incorporation of the RSIA provisions would effectively amend the 1963 Constitution. Chan notes that the RSIA was ‘in substance, a constitutional amend­ment' although it was not stated as such.^[609] Chan adds that the deliberate omission to recite the Bill as a constitutional amendment act reflects its ‘constructive ambiguity'.^[610] He suggests that the Singapore authorities ‘had doubts' whether the Constitution and Malaysia (Singapore Amendment) Act had achieved its legisla­tive purposes. It could also be that the independent Singapore Government saw it fit to assert constitutional autochthony, following the example of India and the Republic of Ireland.^[611] Chan further observes that:

The Singapore Parliament did this by enacting the RSIA in the form it did, in exer­cise of its legislative powers under the 1963/1965 Singapore Constitution, or its plenary powers as the Legislature of a sovereign state (as decided in Taw Cheng Kong), and not by lifting its boots by its bootstraps. Once the 1963 Singapore Constitution became the Constitution of the 1965 State of Singapore, the Legislative Assembly was free to enact any legislation it thought fit provided that it was not inconsistent with the 1963 Singapore Constitution.^[612]

While some questions arise on the wording of the RSIA, Chan rightly notes that ‘[legislative drafting need not be elegant, or even precise, so long as it achieves its legislative purpose’.^[613] For Chan, the RSIA enabled the 1963 Constitution to continue as an existing law. This approach was very much aligned with the overall intent of constitution-making in the throes of independence.

The care in drafting the separation agreement was abundantly evident when independent Singapore's Parliament completed the constitutional formalities for Singapore's independence at the end of 1965. In this regard, the procedures and requirements to amend constitutions are vital. So even as a constitution set the rules for a sovereign entity, the amendment provisions found in a constitu­tion set the rules for how the first-order rules are to be changed. The Singapore Government observed the amendment rules scrupulously. This can be discerned from the following short exchange when the time came to vote on the Republic of Singapore Independence Bill on 22 December 1965:

The Prime Minister: Mr Speaker, Sir, on the question of the Constitutional procedure, again it will require a two-thirds majority on Second Reading.

Mr Speaker: Mr Prime Minister, the only obligation on me is to see that I have a two- thirds majority on the Singapore Constitution Bill, but no such obligation is put on the Assembly with regard to the Federal Constitution. If the House, however, feels that it would be safer this way, I have no objection, but I felt that there was no obligation on this House to provide a two-thirds majority of any amendment to a matter outside the Constitution of the State of Singapore.

The Prime Minister: Ex abundante cautela, I would urge that the House take a divi­sion after the Committee stage and on the Third Reading, the reason being as follows, Mr Speaker, Sir, I think a strict interpretation ofthe responsibilities as set out in the State of Singapore Constitution Act refers to amendments to the Singapore Constitution. But it is open to anyone to urge upon the Judiciary that the passage of this Bill, in fact, does make a fundamental alteration to the nature of the Singapore Constitution enactment, for it incorporates into that enactment all the Federal powers which were, whilst we were in Malaysia, part of the Federal Constitution. So that there can be no doubts about this matter, I would urge that the Bill be passed by a two-thirds majority and that a vote be taken.

Mr Speaker: I entirely agree with Mr Prime Minister that this would be the safer course, of course, and we will take it. If there is going to be any argument about it, this will put it out of court completely. Perhaps the House will record a vote on the Second Reading. Ring the Division Bells.^[614]

In 1970, Prime Minister Lee had asked the British Foreign and Commonwealth Office for a complete redraft of the Singapore Constitution. A ‘first-rate’ draft was provided by the British, but Lee rejected it after further reflection. He ‘preferred to retain the constitutional arrangements that had worked for Singapore, than to pursue some unworkable perfection’.^[615] As Hickling observed in 1980, there appeared to be ‘little urgency in the matter, and no apparent popular pressure’ for a new constitution which ‘by and large probably reflects what is acceptable to the overwhelming majority of citizens in the Republic’.^[616] Lee himself was convicted that the ‘main thing about the Constitution is that it must work’, rather than being a ‘perfect legal document’. Lee’s priority was for Parliament to produce a ‘work­manlike’ document with ‘a fair spread of the powers of Executive authority, checks and balances for a proper account of the use of these powers, and most impor­tant of all, ensure without major amendment the continuance of good and orderly government’.^[617]

IV.