Category: Constitutional interpretation

The New Constitutional Amendment Bill: Changes to the Role and Functions of the Council of Presidential Advisors

Dr. Jaclyn L. Neo
Assistant Professor
National University of Singapore
Faculty of Law

I.         Introduction

Singapore’s elected Presidency is a sui generis institution. It is a modification of the convention in the parliamentary system where the Head of State plays a ceremonial role and is not elected. The modification however does not go far enough to transform the political system to a presidential one whereby the Head of State is also the Head of Government. When the Singapore Constitution was amended in 1991 to institute elections as the mode of selecting the President, thus jettisoning the previous mode of selection, the President was bestowed with certain custodial powers such that he can veto budgets and transactions that draw down on past governmental reserves as well as veto key public service appointment. Indeed, it was the granting of these additional discretionary powers that served to justify changing the office into an elected one. The thinking was that this would imbue the President with a mandate to exercise his discretionary powers, especially when he disagrees with the government of the day to draw down on past reserves or on key public service appointments.

The changes to the presidency served to institute a unique system in which the President checks and balances governmental power on matters concerning the governmental reserves and public service appointments. In order to support the President in discharging his functions, a Council of Presidential Advisors (“CPA”) was established. Designed as an independent body to counsel and advise the President on the exercise of his powers, CPA members are not elected but are nominated by the President, the Prime Minister, the Chief Justice, and the Chairman of the Public Service Commission. While the CPA’s central role is to advise, this should not obscure its importance as legal consequences could arise depending on whether they recommend that the President exercise his veto powers. Under certain provisions in the constitution, where the President vetoes a drawdown of reserves contrary to the recommendation of the CPA, this triggers a mechanism whereby Parliament can override the veto by a two thirds majority vote. The CPA thus plays a critical role within this system of checks and balances involving the President and the government. However, the complexity in which this system works and the independent expert nature of the CPA has meant that the CPA is not a very well understood institution within the constitutional framework. This is unfortunate especially since proposed changes to the constitution strengthens and expands the CPA’s role within the system. The CPA will become more important and needs to be better studied and understood.

The changes to the CPA come after a Constitutional Commission was asked to “review the framework governing the exercise of the President’s custodial powers, particularly the role and composition of the Council of Presidential Advisers.” It is to do so taking into account the custodial powers of the President over Singapore’s financial reserves and the integrity of its public service, and to “ensure that decisions in these areas are made with the support of careful consideration given by a group of persons with substantial suitable experience in the public and private sectors.” The Constitutional Commission made its recommendations in September 2016. The government responded in a White Paper to the recommendations shortly after and introduced a Constitutional Amendment Bill in October 2016. The amendments expand the size of the CPA, strengthens its role within the system of checks and balance, expands its functions, and imposes clearer rules concerning its workings. As the Parliament starts to debate the Constitutional Amendment Bill this week, this post aims to give an overview of the changes that affect the role and functions of the CPA and make some observations as to some of the implications of these changes.
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Textualism vs. Purposive Interpretation: Must an NCMP Seat Be Filled?

Dr Jaclyn L Neo
Assistant Professor
Faculty of Law, National University of Singapore

In a recent blogpost, Dr. Jack Lee argued that if an opposition candidate declines to take up an NCMP seat, the PAP-dominated government may not be obliged to offer that seat to the next eligible opposition candidate. This has thrown up a very interesting debate as to the legal obligations of Parliament to fill the NCMP seats. Besides Dr Jack Lee, Professor Thio Li-ann has also been reported as taking the position that there is no legal obligation on Parliament to offer the seat to the next eligible candidate. In contrast, Professor Kevin Tan argues that article 39 of the Constitution, read with section 52 of the Parliamentary Elections Act obliges Parliament to offer the seat. He is quoted as saying that “The seat cannot be left vacant. A combined reading of both provisions makes it clear that Parliament must have nine members who do not form the government.”

Parliament (Source: Singapore Parliament)

Parliament (Source: Singapore Parliament)

There are clearly good legal and policy arguments for and against imposing a legal obligation on Parliament to offer the seat to the next eligible opposition candidate where it had been previously declined. The disagreement stems from differing approaches to statutory and constitutional interpretation. Continue reading

The Constitutional Status of the Proclamation of Singapore

Proclamation of Singapore

The Proclamation of Singapore, signed by Lee Kuan Yew on 9 August 1965. (From the National Archives of Singapore, archived in the Internet Archives.)

Dr Jack Tsen-Ta Lee
Assistant Professor of Law
School of Law, SMU

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. Continue reading

Protecting Human Rights: The Approach of the Singapore Courts

Article 4 of the Constitution of the Republic of Singapore (1985 Revised Edition, 1999 Reprint)

Article 4 of the Constitution of the Republic of Singapore (1985 Revised Edition, 1999 Reprint). (Photograph by Smuconlaw [CC-BY-SA-4.0], via the Wikimedia Commons.) The Constitution is the supreme law of Singapore, but have the courts unnecessarily limited their role of upholding the Constitution?

Dr Jack Tsen-Ta Lee
Assistant Professor of Law
School of Law, SMU

THE SINGAPORE COURTS have been taking an approach that is very deferential to the political branches of the government – the executive and the legislature. This doesn’t mean that they are deliberately biased in favour of these branches, for example because they have been induced to do so. It means that there is a judicial attitude of giving the political branches much leeway, assuming that action taken by the executive or legislation passed by Parliament is constitutional unless such acts are completely absurd or arbitrary.

This extremely high standard stems from the courts’ view of their role in the constitutional system. I would like to suggest that this view means that the courts have limited their role of upholding the Constitution[1] unnecessarily. Continue reading

The Status of International Human Rights Conventions under Singapore Domestic Law

Jaclyn L Neo
Assistant Professor,
Faculty of Law, National University of Singapore

The High Court today struck out Wee Kim San Lawrence Bernard’s application for judicial review on the basis that the plaintiff had no locus standi. Mr. Wee had argued that the government’s failure to clarify the position that homosexual males are protected from discrimination under Article 12 of the Constitution of the Republic of Singapore is a violation of his constitutional rights. One of Mr. Wee’s arguments was that the Singapore government’s obligation to provide protections for homosexuals stems from its accession to both the UN Convention on the Rights of Persons with Disabilities (“UNCRPD”) and the Convention to Eliminate All Forms of Discrimination Against Women (“CEDAW”).

Leaving aside the substantive question of whether the provisions under UNCRPD or CEDAW cover and assist claims for protection against sexual orientation discrimination, the case raises interesting legal question of the status of ratified treaties/conventions under Singapore law. Singapore is a dualist state. This means that ratified treaties/conventions are not part of domestic law until specifically incorporated. This contrasts with monist states, where treaties are self-executing/automatically incorporated; no additional legislative act is required. Continue reading

Hougang By-election Case: What Court Decision on By-election Reveals

A poll card issued for the 2011 general election

A poll card issued for the 2011 general election. (Photograph by Jacklee [public domain or CC-BY-SA-3.0], via the Wikimedia Commons.)

Dr Jack Tsen-Ta Lee
Assistant Professor of Law
School of Law, SMU

THE COURT OF APPEAL’S judgment of 5 July in Vellama d/o Marie Muthu v Attorney-General[1] – popularly known as the Hougang by-election case – shows that the Court sees its role as policing the margins rather than involving itself in the heart of politics.

The decision came as a surprise to those used to a judicial stance that is fairly deferential towards the Government. It is one of only a handful of cases in which the courts have not accepted the Government’s interpretation of the Constitution.

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A Legal Backgrounder on By-elections

Yaw Shin Leong, 5 May 2011

Yaw Shin Leong at a Workers’ Party rally for the 2011 general election, 5 May 2011. (By Huaiwei. CC-BY-SA-3.0 (www.creativecommons.org/licenses/by-sa/3.0) or GFDL (www.gnu.org/copyleft/fdl.html), via Wikimedia Commons.)

Jack Tsen-Ta Lee
Assistant Professor of Law
School of Law, SMU

THE EXPULSION of Yaw Shin Leong, the Member of Parliament (MP) for Hougang Single Member Constituency (SMC), from the Workers’ Party has once again thrust the issue of the Government’s policy on by-elections into the limelight. This was last discussed in Parliament in August 2008 following the death of Dr Ong Chit Chung, MP for Jurong Group Representation Constituency (GRC).

Article 46 of the Constitution provides that when MPs are ousted from the political parties they stood for in an election, their seats are vacated. Parliament has final say on the matter. On 22 February, Mr Michael Palmer, the Speaker of Parliament, announced that since Mr Yaw had indicated he does not wish to challenge his expulsion, his seat became vacant on 14 February.

During the Parliamentary debate four years ago, Prime Minister Lee Hsien Loong said that the constitutional provision – often known as the “anti-hopping” clause – ensured a stable government. He recalled the tumultuous years in the Legislative Assembly – the predecessor to Singapore’s post-independence Parliament. In 1961, 13 People’s Action Party MPs were able to leave their party and cross the floor, decimating the Government’s majority. Continue reading