The Substance of Constitution-Making
As the 1963 Constitution was ported over to become the 1965 Constitution, the substantive provisions largely remained the same. The separation of powers was maintained in a Westminster-modelled parliamentary democracy, emphasising the commitment to basic constitutionalism and evincing an early recognition that Singapore needed the rule of law in order to thrive.
During the merger (16 September 1963 to 8 August 1965), Singapore sought to further the cause of a Malaysian Malaysia, one where citizenship was the primary identity rather than race.[618] However, the cause of a Malay Malaysia, advocated by the federal government, prevailed. Despite the ethnic Chinese constituting about three-quarters of independent Singapore’s citizen population, Singapore pursued its civic conception of identity and belonging through a Singaporean Singapore rather than a Chinese Singapore. Hence, pluralism is a major influence in constitution-making and constitutional practice in Singapore. In fact, pluralism is consciously nurtured and scripted into the national discourse of nation-building. The form of pluralist constitutionalism practised in Singapore specifically recognises the reality of a plural society and seeks to ensure that diversity does not become a structural weakness and a source of division. While the Government recognises the importance of managing pluralism, there is also the conscious effort to avoid the development of an assertive rights-based legal regime in the management of pluralism in the postcolonial nation-building project.[619]In any plural society, there is often an ascriptive majority and other minority communities. Majoritarianism will work against nation-building if it promotes exclusivity, privilege and preference for the majority, and facilitates or endorses discrimination against the minorities.
However, Singapore was fortunate in that in the negotiations with the British Government in 1958 for internal self-government, all key stakeholders in London and in Singapore embraced the idea and ideal of civic citizenship from the outset.[620] This aspiration of multi-racialism and equal citizenship, clearly expressed in a nation-state’s founding moment, makes it a non-starter to relegate the ethnic minorities to a subordinate status. As the Prime Minister put it in his first remarks on independence:We are going to have a multi-racial nation in Singapore. We will set the example. This is not a Malay nation; this is not a Chinese nation; this is not an Indian nation. Everybody will have his place: equal; language, culture, religion. And we will carry on helping the Malays as we promised to do...[621]
It is instructive to bear in mind what the 1966 Constitutional Commission noted in its report of a non-racial approach to tackling problems in a polyglot society:
We find also in the years succeeding the Second World War the growth of a national spirit amongst the many peoples of many races who now regard Singapore as their home if not the home of their forefathers and we believe there is a growing awareness
and acceptance amongst these peoples that in spite of their different origins, their destinies and that of their children are all inextricably intertwined, intermixed and interwoven and that their future and the future of the nation lies in a non-racial approach to all problems under a form of government which would enable the growth of a united, multi-racial, free and democratic nation in which all its citizens have equal rights and equal opportunities.[622]
This non-racial approach, ironically, requires the Government to be very mindful of race as a core identity marker of Singaporeans, and how laws, policies and institutions have to be scrupulously impartial and recognise the differences among the races.
Part 6 of the 1965 Constitution provides for the special position of the Malays as the ‘indigenous people of Singapore' and tasks the Government with the responsibility to ‘protect, support, foster and promote their political, educational, religious, economic, social and cultural interests and the Malay language'.[623] The Malay language was made the sole national language and one of four official languages.
Limited legal pluralism is provided for in the 1965 Constitution for Muslims to be governed by Shariah law in personal law matters such as marriage, divorce, and heritance.[624]Also of existential concern to Singapore was the supply of water for which Singapore was (and remains) not self-sufficient. Again, the presence of mind of Singapore leaders and the recognition that the two water agreements between Singapore and the Johore State Government were to be more than just mere contractual agreements were incorporated in the separation agreement.[625] Thus, the separation agreement saw to the water agreements continuing in force and also provided for the federal government to guarantee that the Johore State Government would abide by the agreements. In other words, the two water agreements were elevated to treaty agreements and to be honoured as such. These provisions were included in Clause 14 in Annex B of the separation agreement, which was the draft bill to amend the Constitution of Malaysia and the Malaysia Act.[626] The separation agreement, as the fundamental basis of Singapore's existence as an independent sovereign state, was registered at the United Nations as an bilateral international treaty. Furthermore, the separation agreement was given effect to by an amendment to the Malaysian Constitution and a Malaysian Act of Parliament on 9 August 1965, further buttressing the sanctity of the two governments’ mutual guarantee of the water agreements.87
By now, it would be clear that the 1963 State Constitution of Singapore and the allied constitutional instruments were well-placed to be repurposed as the independent Singapore 1965 Constitution. The former’s significance cannot be ignored. Former Singapore Chief Justice Chan Sek Keong notes that Article 161H of the 1963 Malaysian federal Constitution provided significant safeguards for Singapore’s unique constitutional position within the federation while also providing Singapore with significant autonomy vis-a-vis the federation.88 It bears reiterating that the 1963 Constitution restricted the power of the Malaysian Parliament ‘from intruding into [Singapore’s] protected state rights and powers directly, or indirectly, without Singapore’s consent, by means of amending the Malaysian Constitution’.89
It is now apposite to turn our attention to the Proclamation of Singapore by Prime Minister Lee Kuan Yew which was read out to the people of Singapore at ten in the morning on Singapore Day.
It read:Now I LEE KUAN YEW Prime Minister of Singapore, DO HEREBY PROCLAIM AND DECLARE on behalf of the people and the Government of Singapore that as from today the ninth day of August in the year one thousand nine hundred and sixty-five Singapore shall be forever a sovereign democratic and independent nation, founded upon the principles ofliberty and justice and ever seeking the welfare and happiness ofher people in a more just and equal society.
Simultaneously, as the Proclamation of Singapore was being broadcasted in Singapore, Malaysia’s Prime Minister Tunku Abdul Rahman announced the fateful separation in the federal Parliament in Kuala Lumpur. The premier explained
87 In other words, the terms of the separation agreement could not be altered without the express consent of Malaysia and Singapore. See also Sim (n 46) 178-82.
88 The now repealed Article 161H of the Federal Constitution of Malaysia of 1963 (1964 Reprint) read:
No amendment shall be made to the [Federal] Constitution without the concurrence of the [Yang di-Pertuan Negara] if the amendment is such as to affect the operation of the Constitution in relation to Singapore as regards any of the following matters -
(a) citizenship of Singapore, and the restrictions to the citizens of Singapore of the right to be a member of either House of Parliament for or from Singapore, or to be a member of the Legislative Assembly of Singapore, or to vote in any elections in Singapore;
(b) the constitution and jurisdiction of the High Court in Singapore and the appointment, removal and suspension of judges of that court;
(c) the matters with respect to which the Legislature of the State may make laws, the executive authority of the State in those matters, the borrowing powers of the State and the financial arrangements between the Federation and the State...
89 Chan Sek Keong (n 44) 641.
that there were ‘only two courses open to (them)’. The first was to ‘take repressive measures against the Singapore government or their leaders for the behaviour of some of their leaders’.
The second course of action ‘was to sever with the state government [of Singapore] that has ceased to give even a measure of loyalty to the Central Government’.[627] The Malaysian legislature then immediately proceeded with the three readings of the Constitution of Malaysia (Singapore Amendment) Bill 1965. After the Bill was passed, it was sent to the Malaysian Senate and it too passed the Bill. Malaysia’s Head of State, the Yang di-Pertuan Agong gave his royal assent that same day. In Lee Kuan Yew’s words, ‘Singapore was cast out’[628]Lee’s proclamation of Singapore could very well form the Preamble to the Singapore Constitution but it was included as the first document in the separation agreement between Singapore and Malaysia. As Chan notes, the proclamation ‘envisaged a form of “democra[cy]” (that is, representative government and separation of powers), “principles of Justice” and equality (that is, fundamental rights)’ For Chan, ‘[i]mplicit in the 1963 Singapore Constitution, which was supreme, was the rule of law... and that [o]n Singapore Day, there was a process whereby the intention of the constitution-makers could be determined’[629]
Finally, while constitutions often grant rights, they may also restrict or even take away rights. This is also the case with the 1965 Constitution. By way of the RSIA, Part XI of the Malaysian Constitution, which contains provisions on the ‘special powers against subversion, organised violence, and acts and crimes prejudicial to the public and emergency powers’, was incorporated into Singapore’s 1965 Constitution. Thus, the Constitution conferred on Parliament legislative powers to enact special laws to deal with subversion, including laws that may infringe some of the fundamental rights provisions. These significant powers continue to be available to the Government today.[630]
V.