Category: Separation of powers

Return of Judicial Power: Religious Freedom and the Tussle over Jurisdictional Boundaries in Malaysia (I-CONnect Column) by Jaclyn L. Neo

Palace of Justice, Putrajaya by Trebz [CC0], via the Wikimedia Commons.

The following post, written by Dr. Jaclyn L. Neo, was published on I-CONnect Blog on 15 March 2018. While it examines judicial power and amendments in Malaysia, the judgment makes extensive reference to developments in Singapore concerning judicial power and the basic structure doctrine. The Malaysian Federal Court held that judicial power, particularly the power of judicial review, is part of the basic structure of the Malaysian constitution. While it did not strike down the amendments that sought to remove judicial power, it nonetheless used the idea of a basic structure to limit the scope of the amendments. The Malaysian judgment thus offers important insights into the doctrinal possibilities of a basic structure.

http://www.iconnectblog.com/2018/03/return-of-judicial-power-religious-freedom-and-the-tussle-over-jurisdictional-boundaries-in-malaysia-i-connect-column/

Roachgate – No Constitutional Crisis

Chinese Punishment, Whipping a Lawbreaker (c 1900)

A c 1900 photograph of a Chinese criminal being beaten on the buttocks with a stick as a punishment. ([CC BY 2.0], via the Wikimedia Commons.)

Olivine Lin
Lecturer, Law Programmes
School of Law
Singapore University of Social Sciences

Many Singaporeans accessing the day’s news feeds on 20 February 2018 as they sipped their afternoon kopi probably found themselves simultaneously baffled and affronted by the news that “Singapore agrees to UK request to not cane suspect if found guilty”.[1]

Baffled – because the American government had tried unsuccessfully many years ago to pressurise Singapore into agreeing not to acquaint the rear end of one of its citizens, a young delinquent known as Michael Fay, with the blunt end of a rotan, but plucky little Singapore stood its ground firmly and went on to cane the vandal. Had Singapore and her vaunted principles and values changed so much in the intervening years? Continue reading

Towards a “Thin” Basic Structure Doctrine in Singapore (I-CONnect Column) by Jaclyn L. Neo

Mandates, Majorities and the Legitimacy of the Elected President (Part I of II)

320px-poster_of_tony_tan_28english29_for_the_singaporean_presidential_election_-_20110828

A poster of Tony Tan Keng Yam, who was eventually elected as President at the 2011 presidential election. (By Jack Lee [CC-BY-SA-3.0] via the Wikimedia Commons.)

Kevin YL Tan
Adjunct Professor of Law
National University of Singapore

An Elected President to Check an Elected Government

The Elected Presidency was created as a knee-jerk reaction to the People’s Action Party’s (PAP’s) worst nightmare: that in a ‘freak election’, ‘irrational’ voters might cause a seismic shift in voting patterns to bring into office an irresponsible and profligate government. The Westminster parliamentary system of government, with its fusion of executive and legislative powers, would provide no check on such a government if it had a parliamentary majority. It was thus necessary to create a countervailing force to put the brakes on the excesses of such a government.

Back in 1984, Prime Minister Lee Kuan Yew’s solution was to transform the office of the President into an elected one. The logic behind the need to elect the President has been enunciated and emphasized many times: If you want someone to check on an elected government, you need to cloak him or her with the requisite moral authority to do so and this can only come from being elected.

Why Elections Matter

Elections are the bedrock of democratic representation and participation. Those elected are presumed to have the mandate of those who elected them, and thus a corresponding legitimacy to undertake whatever their office requires of them. The bigger the majority, the greater the legitimacy and the more secure the mandate. At the same time, elections are desirable because they throw up the ‘best’ candidates available for the job or mission. However, when we look at how Singapore’s ‘Elected’ President gains office, these precepts quickly fall by the wayside.

Prior to 1991, all presidents were nominated and ‘elected’ by Parliament. There was no real electoral contest in this closed system. Parliament’s ‘electing’ of the President was really a reaffirmation of the Government’s choice; nothing more. The constitutional provisions that followed transformed the office into an elected one, albeit with serious limitations. The idea was that elections gave holders of the office a majoritarian mandate upon which sat its moral authority to control an elected government. The logic of this idea surely lay in (a) giving the electorate a real choice in terms of the candidates; and (b) ensuring that the chosen candidate had indeed been put through the rigours of elections and emerged with an undisputed majority.

However, provisions in the Constitution and the Presidential Election Act subvert this logic in two ways. First, by severely limiting voters’ choice in stipulating the type of candidate who can stand for election based on a mixed criterion of executive experience and financial savvy; and second, by allowing sole candidates to be declared ‘elected’. In the first of this two-part post, I will examine how recent amendments to the Constitution have narrowed the field further by tightening the criteria for ‘private sector’ candidates and the institution of a race-based rotation system of elections.

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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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