Editor’s Note: Today we publish the 2016 Report on Singaporean constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.
–Jaclyn L. Neo,*Jack Tsen-Ta Lee,+ Makoto Hong,^ and Ho Jiayun#
I. Introduction
Constitutional law in Singapore in 2016 was dominated by two major themes—the appropriate division of powers within government and how best to legally ensure minority representation in government. One persistent framework used to explain and justify judicial caution is the green light versus red light approaches to judicial review.[1] While initially used by Harlow and Rawlings to conceptualize administrative law, this framework has been extended to constitutional cases in Singapore.[2] Indeed, one way to understand the judiciary’s approach to constitutional law is to see it through the lens of the “green-light” approach whereby the judiciary is not seen as the first line of defense in ensuring good governance. The public should “seek good government through the political process and public avenues rather than redress bad government through the courts”.[3] This contrasts with the “red-light” view of public law—“where the courts exist in a combative relationship with the Executive, functioning as a check on the latter’s administrative powers”.[4]
II. The Constitution and the Courts
A. The Constitution and Singapore’s Political System
A former British colony and later a former member state of the Federation of Malaysia, Singapore became an independent, sovereign republic on 9 August 1965, with a political system based on the Westminster parliamentary system encapsulated within a written constitution containing a bill of rights. Many changes have been made to Singapore’s parliamentary system since independence. These “tailor-making” exercises entailed amending the Constitution to introduce two new types of parliamentarians – the Non-Constituency Members of Parliament (opposition candidates with the highest percentage of votes in their respective constituencies but who did not win the plurality); and Nominated Members of Parliament (non-partisan parliamentarians selected from certain fields of interest such as culture, industry, community service, and the labour movement).[5] In addition, the Group Representation Constituencies (“GRCs”) were introduced in 1984 to ensure a minimum level of minority representation in Parliament.[6] In contrast to what are now called Single Member Constituencies, where voters return one candidate to Parliament, in a GRC, voters cast ballots for teams of candidates. At least one member of each team must be from a minority community. Lastly, the office of the President was transformed in 1991 from a purely ceremonial head of state to an elected one with some (but still limited) discretionary powers. These discretionary powers include powers to veto attempts by the Government to deplete the nation’s past financial reserves; and to veto unsuitable appointments or dismissals of key public officers (e.g., judges, the Attorney-General, the Chief of Defence Force, and the Commissioner of Police).[7] Constitutional amendments taking effect in 2017 have, among other things, made the qualifications for presidential candidates more stringent and introduced the concept of “reserved elections”, which are elections reserved at first instance for candidates from designated minority communities[8] – another move to secure diversity in institutions of governance (see further discussion below).
B. The Constitution and the Courts
Singapore does not have a specialized constitutional court. Like private law matters, public law issues are dealt with primarily by the High Court and Court of Appeal, respectively the lower and upper divisions of the Supreme Court, and to a much more limited extent by the State Courts (the nation’s subordinate courts). Cases are generally first brought before the High Court by way of judicial review, the available remedies being prerogative orders (mandatory orders, prohibiting orders, quashing orders, and orders for the review of detention) and declarations. A right of appeal lies from the High Court to the Court of Appeal, the highest appellate court. Judges are appointed to the Supreme Court by the President with the advice of the Prime Minister.[9] A number of constitutional provisions and common law rules seek to ensure the independence of the Supreme Court.[10] For instance, judges hold office till the age of 65, may only be removed from office on proof of misbehaviour or inability to properly discharge the functions of the office that has been established by an independent tribunal, may not have their remuneration and other terms of office altered to their disadvantage, and have immunity from lawsuits in most situations.
Article 100 of the Constitution provides an alternative procedure for constitutional issues to be resolved. It provides that the President may refer to a tribunal of at least three Supreme Court judges “any question as to the effect of any provision of this Constitution which has arisen or appears to him likely to arise”.[11] This is a fairly limited procedure as the President lacks personal discretion to refer constitutional questions to the tribunal and is required to act on the Cabinet’s advice, and it has been suggested by the Court of Appeal that the procedure is only intended for resolving disputes between constitutional organs. However, the Tribunal’s findings do not bind the Government.[12] The Article 100 procedure has only been used once since it was introduced.[13]
III. Constitutional Controversies
A. Separation of Powers
The doctrine of the separation of powers is a cornerstone of Singapore’s constitutional arrangement. While not specifically mentioned in the Constitution, the existence of this constitutional principle may be inferred from the separate vesting of executive, legislative, and judicial power.[14] The separation of powers has also been judicially affirmed as “a fundamental doctrine of the Constitution”[15] and as part of the Constitution’s basic structure.[16] It is therefore undisputed that the Constitution is structured upon and incorporates the doctrine of the separation of powers.
The proper division and balance of power among the different branches of government remains a persistent issue in Singapore’s constitutional law. Most cases thus far involve the contentious issue of the proper balance between judicial power and executive power. This is complicated by the fact that the cases often involve questions of the “appropriate measure of deference, respect, restraint, latitude or discretionary area of judgment” that courts should give the Executive.[17] Indeed, the task of demarcating the boundary between the judicial and executive branches has been described as “one of the most complex in all of public law and goes to the heart of the principle of the separation of powers”.[18]
Courts have thus far tended to give due regard to executive judgment in what they call polycentric decisions.[19] For instance, national security is traditionally an area in which the courts have undertaken a less intense standard of review. This, however, does not mean that courts would not scrutinise executive decisions affecting national security. In Tan Seet Eng v Attorney‑General,[20] the Court of Appeal held that while Parliament has placed the power to impose detention without trial in the hands of the Executive which must be satisfied that the prescribed criteria are met, it is for the Court to determine whether the detention is lawful, although the Court cannot substitute its view for the Minister’s on how the discretion should be exercised.[21] Significantly, the Court held that even for “high policy” matters that are typically non‑justiciable, the courts can inquire into whether decisions are made within the scope of the relevant legal power or duty and arrived at in a legal manner.[22] This case concerned a detention without trial under the Criminal Law (Temporary Provisions) Act (“CLTPA”).[23] The Court ordered the release of the applicant because the grounds for his detention did not establish whether or how the match-fixing had an impact on public safety, peace, and good order within Singapore. According to the Court, the CLTPA only permitted detention where the detainee’s acts were harmful in Singapore. The applicant was re-detained less than a week later with an amended order that took into account the Court’s judgment. No further challenge has been brought on the new order.[24]
This decision asserts the Court’s position as a coequal branch of government[25] and affirms a substantive role for the Court in reviewing legality even in polycentric matters. Notably, several weeks after the Court of Appeal’s judgment, the Ministry of Home Affairs of its own initiative reviewed the detention orders of three other detainees who were involved in match-fixing activities and, in light of the decision, concluded that their detention orders ought to be revoked.[26] This interaction between the judiciary and the Executive can be said to reflect a dialogic approach to upholding the legality of governmental action in accordance with the respective roles of each branch of government.
In comparison, the courts have been cautious in not overstepping their self-policed boundaries between judicial power and legislative power. In Lim Meng Suang v Attorney-General,[27] a case concerning the constitutionality of a criminal provision against acts of “gross indecency” between male persons, the Court said it could not have regard to “extra-legal” considerations and should not attempt to operate as a “mini-legislature”.[28] Certain considerations such as the “tyranny of the majority”, the absence of harm, the immutability and/or intractable difficulty of changing one’s sexual orientation, and the safeguarding of public health were more appropriate for Parliament to take into account. This self-imposed boundary between legal and extra-legal arguments delineates judicial competence from what is seen as highly contentious and political issues, which the Court sees as the domain of politics. Whether such a distinction can be so neatly made is debatable, and indeed constitutional courts in some other jurisdictions would generally regard such arguments as entirely legitimate for judicial consideration.
B. Protection of Minorities
A key event in 2016 was the convening of a constitutional commission to review and recommend changes to the elected presidency, including how to ensure that minorities will be periodically elected to Presidential office. The Constitutional Commission is only the second to be convened to consider amendments to the Constitution since Singapore’s independence. In its report, the Commission recommended a model of reserved elections for the presidency whereby particular elections could be reserved for candidates of a specific racial group if there has not been an officeholder from that group for five consecutive terms of six years each. This move to ensure minority representation seeks to reinforce the presidency’s symbolic function as a unifying figure for all racial groups. Historically, the presidency has been taken to be a symbol of multiracialism and the (initially nominated) presidency was rotated among the four major ethnic groups in Singapore— Malay, Eurasian, Indian, and Chinese. Majoritarian systems of elections, however, do not lead to such a neat distribution. Understandably, this emphasis on the symbolic function of the office sits uneasily with the elected nature of the presidency, as reserved elections necessarily restrict political choices. The 2017 presidential elections will be reserved for candidates from the Malay community, which has not yet had a representative as President since the office was made an elected one.[29]
In line with its broad constitutional aim of ensuring minority protection, Singapore also signed the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) in 2015. It expects to ratify the convention in 2017. However, any domestic effect to the ICERD must be and has yet to be specifically legislated.[30] As the Court of Appeal has explained, since treaties are signed by the Executive without the need for prior legislative approval, they cannot be self-executing as this would intrude into Parliament’s legislative powers.[31]
IV. Major Cases
A. Rights and Freedoms
1. Protection from Arbitrary Deprivation of Life
2016 featured many constitutional challenges arising from amendments to the Penal Code and Misuse of Drugs Act (“MDA”), providing for persons guilty of certain forms of murder and drug trafficking to be, in certain circumstances, sentenced to life imprisonment and caning instead of a death sentence. Prior to these amendments in 2012, the death sentence was mandatory for these offences.
In Prabagaran,[32] the Court of Appeal upheld the constitutionality of the amendments to the MDA introducing these discretionary sentencing powers if the accused drug trafficker was a mere courier and the Public Prosecutor certifies that he had “substantively assisted” in disrupting drug trafficking activities. The applicants had not been denied protection from deprivation of life except “in accordance with law” under Article 9(1) of the Constitution. The Court observed that the applicants had all been given opportunities to provide information to assist. Natural justice, entailed in the concept of “law”, did not also require that they have a chance to address the Public Prosecutor on whether they had rendered substantive assistance, which turned on factors they would be in no position to comment on. Further, the requirement for substantive assistance was not too absurd or arbitrary to be “law” because it bore a rational relation to the purpose of the provision, which was to enhance operational effectiveness. Poignantly, the Court of Appeal pointed out that if the applicants succeeded in showing that the new provision was unconstitutional, their death sentences would remain untouched because, apart from the new provision, the death penalty would have been mandatory.
2. Death Penalty and Finality
A distinct theme in several cases was the Court’s concern with finality as an integral aspect of justice, even in capital cases. In Kho Jabing v Public Prosecutor[33] (“Kho Jabing (criminal motion)”), the Court of Appeal set a high standard for reopening a concluded criminal appeal, specifically that there had to be sufficient material on which it could be concluded that there had been a miscarriage of justice. Notably, raising new legal arguments involving constitutional points did not automatically entitle an applicant to a review of his concluded appeal. Rather, constitutional arguments also had to be based on new and compelling material that showed the decision to be demonstrably wrong or tainted by fraud or breach of natural justice. The same touchstone applied to cases involving the death penalty. It was observed that once capital cases received the anxious and searching scrutiny they deserve, and the avenues of appeal or review have run their course, “attention must then shift from the legal contest to the search for repose”.[34] The Court’s motivating concern was to protect the integrity of the judicial process as well as to prevent the damage that an endemic “culture of self-doubt” may do to public confidence.
In subsequent decisions, the Court of Appeal strongly discountenanced attempts to delay the execution of a death sentence imposed by law at the eleventh hour where no real issue of merit was raised. Following Kho Jabing (criminal motion), the Court of Appeal heard and dismissed a second criminal motion filed two days before Kho’s rescheduled execution date which again sought to set aside his death sentence. The same day, two civil applications were filed to stay Kho’s execution on account of constitutional challenges, although only one proceeded. In Kho Jabing v Attorney-General,[35] the Court of Appeal refused the stay, opining that the fresh civil application was an abuse of process because it traversed the same ground already determined in prior criminal motions. Having decided in Kho Jabing (criminal motion) that the test for determining if a person convicted of murder ought to be sentenced to death[36] was normatively defensible, the Court declined to reopen the inquiry of whether the same test was too vague to be considered as “law” under Article 9 – the substance of this challenge had been addressed. There was also no merit to his allegations of retrospectivity and unequal treatment.
Chijioke Stephen Obioha v Public Prosecutor[37] dealt with another application to set aside a death sentence as a constitutional violation, filed two days before the execution date. The Court of Appeal dismissed the application on the ground that it was an abuse of process; the procedural history showed that the applicant had filed multiple applications in dribs and drabs to prolong matters ad infinitum when he had ample opportunity to present motions based on the arguments being advanced. The Court further observed that the time taken to review the death penalty regime and time afforded to the applicant to avail himself of the new provisions could not amount to undue delay that converted death row into a form of cruel and inhuman punishment in itself.
B. Separation of Powers
The principle of separation of powers remains a developing area in Singapore law.
1. Ouster Clauses and Judicial Power
Among the issues that remain unresolved is whether ouster clauses violate the principle of separation of powers and the constitutional vesting of judicial power in the courts. Under Article 93 of the Constitution, judicial power is “vested in a Supreme Court and in such subordinate courts as may be provided by any written law for the time being in force”. This question was considered but not resolved by the Court of Appeal in Per Ah Seng Robin v Housing and Development Board.[38] The Court noted that the Singapore courts have declined to give effect to ouster clauses on several occasions, and that there is much academic commentary arguing that ouster clauses should not be enforced insofar as such clauses seek to oust the courts’ jurisdiction to review justiciable matters.[39] However, in this case, the court declined to come to a firm conclusion as the respondent did not rely on the ouster clause in question.
2. Demarcating Judicial and Executive Power
Where legislation assigns power that is judicial in nature to the Executive, this is inconsistent with Article 93 of the Constitution. However, ascertaining the nature and scope of judicial power has always been a difficult task, particularly since the Constitution does not define judicial power. In the 2012 decision of Mohammad Faizal, the Court described several key indicia of judicial power as premised on the existence of a controversy; entailing the courts to make a finding on the facts as they stand; and entailing the court to apply the relevant law to the facts to determine the rights and obligations of the parties concerned for the purposes of governing their relationship for the future.[40] Mohammad Faizal also established that the power to prescribe punishment is part of legislative power while the exercise of such discretion as conferred by statute to inflict legislatively-prescribed punishments on offenders is a judicial function.[41] Consequently, “no punishment prescribed by the legislative branch can intrude into the sentencing function of the courts”.[42]
This issue was revisited in Prabagaran (see above). The applicants argued that it was a breach of the constitutional principle of the separation of powers for a statute to prescribe an executive decision (ie, the Public Prosecutor’s certification) as a precondition to the Court’s discretion to sentence particular offenders. The contention was that this effectively allows the Executive to select the punishment to be imposed on an offender. While the Court of Appeal accepted that some forms of legislative allocation of powers to the Executive could be in breach of the principle of separation of powers, it did not consider the impugned provisions to be the case: the power to pronounce the sentence remained with the court and there were good reasons why the Executive was best placed to make an operational assessment of substantive assistance. The Public Prosecutor’s discretion is limited to the question of whether the prescribed criterion is satisfied, as a precondition to the exercise of the Court’s sentencing powers,[43] and is not tailored to the punishment that he thinks should be imposed on the offender. Consequently, the Court held that the Public Prosecutor’s decision on whether to grant a certificate of substantive assistance could be challenged, but only on the grounds of bad faith and malice.[44]
3. Substantive Legitimate Expectations
The emerging doctrine of substantive legitimate expectations also raises issues of separation of powers. The doctrine of substantive legitimate expectation in essence binds public authorities to representations about how they will exercise their powers or act in the future. In 2014, the High Court held in Chiu Teng @ Kallang Pte Ltd v Singapore Land Authority (“Chiu Teng”)[45] that the upholding of legitimate expectations was “eminently within the power of the judiciary” and that substantive legitimate expectations should be recognised as a stand-alone head of judicial review.[46] In SGB Starkstrom Pte Ltd v Commissioner for Labour,[47] the Court of Appeal considered but declined to either affirm or reject the doctrine as laid down in Chiu Teng. However, the Court made important remarks about the constitutional foundations of judicial scrutiny of administrative decisions.
First, from the Court’s perspective, the core issue was whether the Executive or the judiciary was the appropriate body to decide whether one party’s legitimate expectation should prevail over the countervailing public interests. It recognised that such a determination would often involve polycentric considerations because it would affect third parties who would have stood to benefit from the public authority’s change in position. Second, the court expressed concern that acceptance of the doctrine could cause a redefinition of the “approach to the doctrine of separation of powers and the relative roles of the judicial and executive branches of Government”.[48] It suggested that, between the extreme poles of enforcing a substantive legitimate expectation and completely ignoring it, there are intermediate options that may be more suited to the current conception of the separation of powers in Singapore.[49] Significantly, these intermediate options were all procedural protections aimed at ensuring that due consideration is given to an agency’s prior representations, short of interfering with the substance of executive action. While the status of the doctrine remains unsettled, it has the capacity to ensure better governance within the executive branch as the Executive is likely to exercise caution in making representations and to have regard to its prior representations in its decision-making process. To this extent, the judgment may be regarded as encouraging good governance in accord with the green light theory of judicial review.
V. Conclusion
In conclusion, the year 2016 saw a continuingly evolving relationship between the political branches of government and the judicial power of review. While the courts generally showed a significant amount of trust in the political branches, in line with the “green-light” approach, they nonetheless asserted their judicial power to review executive and legislative acts where deemed necessary. One may view the judicial pronouncements as the courts coming into their own as a coequal branch of government and navigating the appropriate scope of their powers. Indeed, what is clear is that the courts will review executive action to ensure legality. As the Court of Appeal aptly stressed in Tan Seet Eng, where a matter is clearly unlawful, the question of judicial deference “simply does not arise”.[50]
* Assistant Professor, National University of Singapore, Faculty of Law; JSD (Yale); LLM (Yale); LLB (Hons) (NUS).
+ Assistant Professor of Law, School of Law, Singapore Management University; PhD (B’ham), LLM (UCL, Lond), LLB (Hons) (NUS).
^ Associate Fellow, AGC Academy, Attorney-General’s Chambers; LLB (Singapore Management University, Summa).
# Justices’ Law Clerk, Supreme Court of Singapore; MA (Cantab), BCL (Oxon), LLM (Harvard).
[1] See Carol Harlow and Richard Rawlings, Law and Administration (3rd edn, Cambridge University Press 2009).
[2] See Jeyaretnam Kenneth Andrew v Attorney-General [2014] 1 SLR 345 (“Jeyaretnam”).
[3] Ibid, [48].
[4] Ibid, [49].
[5] Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Rep) (“Constitution”), Art 39(1)(c) and the Fifth Schedule.
[6] Constitution, Art 39A, which states that the GRC scheme is for the purpose of ensuring “the representation in Parliament of Members from the Malay, Indian and other minority communities”.
[7] Constitution, Pt XI, Arts 22, 22A and 22C.
[8] Constitution, Art 19B.
[9] Constitution, Art 95 read with Art 22(1)(a).
[10] Constitution, Art 98.
[11] Constitution, Art 100(1).
[12] Tan Eng Hong v Attorney-General [2012] 4 SLR 476, [103].
[13] Constitutional Reference No 1 of 1995 [1995] 1 SLR(R) 803.
[14] Constitution, Arts 23, 38 and 93.
[15] Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR(R) 239, [134] (Phyllis Neo).
[16] Mohammad Faizal bin Sabtu v PP [2012] 4 SLR 947, [11]-[13] (Mohammad Faizal), most recently cited with approval in Prabagaran a/l Srivijayan v Public Prosecutor [2017] 1 SLR 173 (CA) at 200, [56] (Prabagaran). See also Phyllis Neo (n. 15), [134].
[17] Lord Woolf et al, De Smith’s Judicial Review (7th edn, Sweet & Maxwell, 2013), para 11-004.
[18] Ibid.
[19] Lee Hsien Loong v Review Publishing Co Ltd [2007] 2 SLR(R) 453, [98].
[20] [2016] 1 SLR 779 (Tan Seet Eng).
[21] Ibid, [97].
[22] Tan Seet Eng (n. 16), [106].
[23] The CLTPA empowers the Minister for Home Affairs to order the detention without trial for a period of not more than a year a person who has been associated with activities of a criminal nature if the Minister deems it necessary in the interests of public safety, peace, and good order.
[24] “Alleged match-fixer Dan Tan re-arrested”, The Straits Times, (1 December 2015) http://www.straitstimes.com/singapore/courts-crime/alleged-match-fixer-dan-tan-re-arrested accessed 17 April 2017.
[25] Tan Seet Eng (n. 20), [90].
[26] Ministry of Home Affairs, “MHA Statement on Three Members of Match-fixing Syndicate Released from Detention and Placed on Police Supervision Orders” (18 January 2016) https://www.mha.gov.sg/Newsroom/pressreleases/Pages/MHA-Statement-on-Three-Members-of-Match-fixing-Syndicate-Released-from-Detention-and-Placed-on-Police-Supervision-Orders.aspx accessed 4 March 2017.
[27] [2015] 1 SLR 26 (CA).
[28] Ibid, [173] (original emphasis).
[29] Siau Ming En, “Next presidential election to be reserved for Malay candidates”, The Straits Times (9 Nov 2016) http://www.todayonline.com/singapore/next-presidential-election-be-reserved-malay-candidates accessed 18 April 2017.
[30] See Yong Vui Kong v PP [2015] 2 SLR 1129, where the Court of Appeal took a strictly dualist view of international law.
[31] Ibid, [45].
[32] Prabagaran (n. 16).
[33] [2016] 3 SLR 135.
[34] Ibid [50].
[35] [2016] 3 SLR 1273.
[36] The test, laid down in Kho’s original re-sentencing appeal, was that the death sentence would be appropriate where the offence “outraged the feelings of the community”: PP v Kho Jabing [2015] 2 SLR 112, [44], [86], and [203].
[37] [2017] 1 SLR 1.
[38] [2016] 1 SLR 1020.
[39] Ibid [64]-[66].
[40] Ibid [27].
[41] Ibid [45].
[42] Ibid [49].
[43] Ibid [76].
[44] MDA, section 33B(4). As recognised by the Court of Appeal in Muhammad Ridzuan bin Mohd Ali v Attorney-General [2015] 5 SLR 1222 at [76], the Public Prosecutor’s decision can also be challenged on grounds of unconstitutionality.
[45] [2014] 1 SLR 1047.
[46] Ibid [113].
[47] [2016] 3 SLR 598 (“SGB Starkstrom”).
[48] Ibid [59].
[49] These include requiring the public authority to confirm that it has considered its representation or to give reasons for its assessment that the legitimate expectation should be defeated. To this list, one may add a more proactive duty to consult parties to whom representations have been made. To decide when such procedural duties are applicable, the High Court’s definitions of a qualifying representation and expectation can be instructive(see Chiu Teng (n. 71), [119]). See Sundaresh Menon CJ, “The Rule of Law: The Path to Exceptionalism” (2016) 28 SAcLJ 413 for extra-judicial comment.
[50] See Tan Seet Eng (n. 20), [106].
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