THIS MORNING at 9:00 am, a 2012 audio recording of the Proclamation of Singapore by the late former Prime Minister Lee Kuan Yew was broadcast on radio and television. It was on this day half a century ago that Singapore declared its independence from the Federation of Malaysia. Back then, the proclamation was read by a Radio Singapore announcer as Lee had “too many other things to do in quick succession”, including the famous noon press conference at which he teared up.
The Proclamation forms part of the preamble to the Independence of Singapore Agreement 1965, which was a bilateral international agreement between Singapore and Malaysia executed two days earlier on 7 August. It contains the following stirring words:
WHEREAS it is the inalienable right of a people to be free and independent; …
AND WHEREAS by an Agreement made on the seventh day of August in the year one thousand nine hundred and sixty-five between the Government of Malaysia of the one part and the Government of Singapore of the other part it was agreed that Singapore should cease to be a state of Malaysia and should thereupon become an independent and sovereign state and nation separate from and independent of Malaysia; …
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 of liberty and justice and ever seeking the welfare and happiness of her people in a more just and equal society.
Some of the principles mentioned in the final paragraph find expression in the Constitution of the Republic of Singapore. Where “liberty and justice” are concerned, Article 9(1) of the Constitution states that “[n]o person shall be deprived of his life or personal liberty save in accordance with law” – this is also an affirmation of the rule of law. Article 12(1) reminds us that “[a]ll persons are equal before the law and entitled to the equal protection of the law”, echoing the quest for “a more just and equal society”.
Of course, that fact can be inferred from constitutional provisions such as Articles 65 and 66 that require regular parliamentary elections to be held. Article 65 fixes the maximum term of each Parliament at five years from the first sitting of Parliament following a general election, though the Prime Minister is free to call an election before the period is up. (Indeed, this is the norm.) Article 66 requires a general election to be held within three months of a dissolution of Parliament. The Government has relied on these provisions to say that the citizen’s right to vote is implied into the Constitution’s structure.
Is the Proclamation part of the Constitution? In the Revised Edition of the Statutes of the Republic of Singapore and the Singapore Statutes Online website, the Independence of Singapore Agreement can be found in a section entitled “Constitutional Documents” together with the reprint of the Constitution and the Republic of Singapore Independence Act 1965 (‘RSIA’).
In Vellama d/o Marie Muthu v Attorney-General (2012), the High Court regarded the RSIA as part of the Constitution. This is unsurprising as Parliament passed the Act to create a constitution for the newly independent nation. This constitution was a patchwork, with pieces from the original Constitution of the State of Singapore 1963, the Federal Constitution of Malaysia, and the RSIA itself. Until the first authorized consolidating reprint was published in 1980, one had to refer to these three documents to figure out what the Constitution said. Conscious of the special nature of the RSIA – which otherwise looks like an ordinary statute – Parliament decided to ensure that at least two-thirds of all MPs voted for the bill, the procedure required for amending the State Constitution. Lee Kuan Yew justified taking this course of action in these terms:
I think a strict interpretation of the 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.
In fact, the MPs who were present in the House that day voted unanimously in favour of the bill.
The RSIA does not expressly mention the Independence of Singapore Agreement, and so it does not form part of the official reprint of the Constitution. Yet, the Agreement is arguably a ‘constitutional document’ in the sense that without it, and the Proclamation contained within it, the Constitution would lack all purpose.
Here, it is helpful to distinguish between the ‘big-C’ and ‘small-c’ constitutions. The big-C Constitution is the bundle of legal provisions contained in the official reprint of that document, while the small-c constitution is a broader “amorphous body of rules, traditions, customs and norms serving a constitutional function which shapes public life, not found in the constitutional text”. The Agreement could therefore be said to be part of the small-c constitution. While it does not have any direct effect in domestic law (though as a treaty it binds the Governments of Singapore and Malaysia in international law), it might be referred to by a court to shed light on how the provisions of the big-C Constitution should be interpreted.
This has not happened yet. It would be interesting, for example, to see if a court would cite the Proclamation to underline the importance of the democratic nature of Singapore’s political system when determining whether a legally enforceable right to vote should be implied from the constitutional text. Although, as mentioned above, the executive takes the view that such an implied right exists, due to the separation of powers doctrine the judiciary is free to independently decide whether it agrees with this position.
Till then, happy 50th, Singapore.
The writer is an Assistant Professor of Law who teaches and researches administrative and constitutional law at the Singapore Management University.
1 Independence of Singapore Agreement 1965 (Gazette Notification No 1824/1965, now 1985 Revised Edition).
2 Constitution of the Republic of Singapore (1985 Revised Edition, 1999 Reprint).
3 Constitution, Articles 65 and 66.
4 Wong Kan Seng (Minister for Home Affairs and Leader of the House), “Is Voting a Privilege or a Right?“, Singapore Parliamentary Debates, Official Report (16 May 2001), vol 73, col 1726; K Shanmugam (Minister for Law), “Head R – Ministry of Law“, Singapore Parliamentary Debates, Official Report (13 February 2009), vol 85, col 3158.
5 Republic of Singapore Independence Act 1965 (No 9 of 1965, 1985 Revised Edition).
6 Vellama d/o Marie Muthu v Attorney-General  SGHC 155,  4 SLR 698 at 734–735, para 111, High Court (Singapore).
7 Lee Kuan Yew (Prime Minister), speech during the Second Reading of the Republic of Singapore Independence Bill, Singapore Parliamentary Debates, Official Report (22 December 1965), vol 24, col 453. The RSIA was backdated to 9 August 1965.
8 Thio Li-ann, “The Province of Constitutional Law” in A Treatise on Singapore Constitutional Law (Singapore: Academy Publishing, 2012), p 66, para 01.173.
9 There is a precedent: in Vellama  SGCA 39,  4 SLR 1, the Court of Appeal disagreed with the Prime Minister’s view that Article 49(1) of the Constitution did not oblige him to hold a by-election when a parliamentary vacancy arises in a Single Member Constituency. It held that, unless a general election is imminent, a by-election must be held, though the PM need only call for one within a reasonable time.
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