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

CfP: 2018 Annual Conference of the International Society of Public Law (“ICON-S”)

The 2018 Annual Conference of the International Society of Public Law (“ICON-S”) will take place at the University of Hong Kong on June 25-27, 2018, under the auspices of the University of Hong Kong’s Faculty of Law and its Centre for Comparative and Public Law. This will be the fifth Annual Conference of ICON-S, following its four Annual Conferences (Florence 2014, New York 2015, Berlin 2016, Copenhagen 2017), and will be the first time the conference is held in Asia. The event will mark the beginning of the celebration of the 50th anniversary of the Faculty of Law of the University of Hong Kong.

The theme of the conference is “Identity, Security, Democracy: Challenges for Public Law”. Continue reading

Constitutional Change in Singapore’s Elected Presidency: Navigating Questions of Ethnic Identity and Representation

Blog of the IACL, AIDC

By Dr Jaclyn L. Neo

Jaclyn Neo - Headshot

For the first time since its independence in 1965, Singapore has a female President. Madam Halimah Yaacob was sworn in as the country’s 8th President on 14 September 2017. She is also Singapore’s first Malay President since the presidency was changed from a nominated office to an elected one in 1991.

Several constitutional changes led up to Madam Halimah’s election. The first took place in 1991, when the Presidency was changed to an elected office. This change was justified on the grounds that the President needed a democratic mandate to wield additional constitutional powers. Under the British Westminster parliamentary system, after which Singapore’s political system is modelled, the head of state is mostly a ceremonial position. Accordingly, Singapore’s President only had limited discretionary powers, i.e. over the appointment of the Prime Minister, declaring the office of the Prime Minister vacant, and refusing a request…

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New Blog on Administrative Law in the Common Law World: the Admin Law Blog

Readers of the Singapore Public Law Blog may be interested in the newly launched Admin Law Blog.  The Admin Law Blog is a forum for the discussion of ideas and developments of interest to scholars of administrative law across the common law world. It aims to connect administrative law scholars to each other and to contribute to the growing field of comparative administrative law. The blog is edited by Farrah Ahmed (Melbourne Law School), Swati Jhaveri (National University of Singapore), and Adam Perry (University of Oxford).

It will serve as an incubation site for scholarly projects and legal reform proposals. It will feature both analysis pieces as well as a regular ‘roundup’ of developments in the field.  The blog has been launched with a topical post by Susan Rose-Ackerman on ‘Administrative Law, the Common Law and the US Presidential System’ comparing separation of powers and checks and balances in the US to other common law parliamentary democracies. Paul Daly’s post next week on ‘Voidness, Voidability and Values‘ offers an account of the distinction between unlawful decisions that are void and those that are voidable.

Submissions to the blog are welcome at alawblogorg@gmail.com. You can also follow the blog on Twitter at @adminlawblog.

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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Singapore’s Constitutional Commission: Altering the Elected Presidency to Ensure Multiracialism

By Dr. Jaclyn L. Neo

Assistant Professor of Law, National University of Singapore

First published on ConstitutionNet on 30 September 2016

In February 2016, and only for the second time since Singapore’s independence, the government convened a Constitutional Commission to consider changes to the constitution. Led by Chief Justice Sundaresh Menon, the commission was tasked to consider and recommend constitutional changes to safeguard minority representation in the Presidency. This was one of its three tasks, the other two of which were to review the eligibility criteria for presidential candidates and to review the framework governing the exercise of the President’s custodial powers, particularly the role and composition of the Council of Presidential Advisers (see its Terms of Reference).

Safeguarding minority interests as a necessary aspect of peaceful coexistence among the different racial groups is a frequent fixation of the government in multiracial Singapore. Demographic data in 2015 shows that persons of Chinese ethnicity constitute more than three quarters of the total citizen population (at 76.2%) while Malays form the largest minority at 15%, followed by those of Indian descent at 7.4%. Eurasians are classified along others as “Others”, which together constitute 1.4% of the citizen population. Indeed, the safeguarding of minority rights was also a concern for the first constitutional commission convened in 1965 and chaired by Singapore’s first post-independence Chief Justice Wee Chong Jin. That commission was tasked to consider how the rights of minorities can be adequately safeguarded in the Constitution. There, the Commission opted for a strong emphasis on equal individual rights for all. In recent years, however, there has been a shift from individual rights to protective measures aimed at groups. The Group Representation Constituency (GRC) scheme, for instance, is one such measure that the government adopted to ensure minority representation in Parliament. Under the scheme, certain constituencies are contested on a team basis in parliamentary elections with at least one member belonging to a designated minority group.

In its report released on 7 September 2016, the Constitutional Commission recommended a model of reserved elections for the presidency to safeguard minority rights. This means that if there has not been an office holder from a racial group for more than five consecutive terms of six years each, then only candidates from that particular group can contest the next election. While it was not within its Terms of Reference, the Commission also recommended that the presidency be reverted to its previously nominated, as opposed to elected, form as it opined that this was better suited for its symbolic function as a unifying figure for all races in Singapore. The government has, however, emphatically stated that this specific reversal is not an option.

By instituting safeguards for minority representation, the government seeks to reaffirm and strengthen the presidency’s symbolic function as a unifying figure for all racial groups in Singapore. However, this symbolic function sits uneasily with the elected nature of the presidency and changes to ensure that minority candidates would be elected as President would necessarily restrict political choice.

Read further: http://www.constitutionnet.org/news/singapores-constitutional-commission-altering-elected-presidency-ensure-multiracialism

 

Recent Judicial Comments on the Basic Structure of the Constitution

By Swati Jhaveri (Assistant Professor, Faculty of Law, National University of Singapore)

The idea of the “basic structure” of the Constitution of Singapore has been the subject of ongoing deliberation in the courts since the case of Teo Soh Lung v Minister for Home Affairs[1].  The Constitution of Singapore can be amended by a two-thirds majority (a national referendum is only required where the issue is one of the relinquishment of sovereignty).  Due to the presence of a strong majority by one political party in the legislature this may not be a significant hurdle especially as voting is done on the basis of a party whip system.  The question of constitutional entrenchment in a system committed to constitutional supremacy as part of its text (Article 4) is therefore an important one.

This question has been addressed directly by the courts in Singapore in the form of a discussion on the ‘basic features doctrine’.  The language of the “basic features doctrine” comes from Indian constitutional law jurisprudence, most notably the case of Kesavannada Bharati v State of Kerala[2] where the Supreme Court of India held that:

every provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remains the same[3]

The Supreme Court of India has gone on in subsequent cases to identify such fundamental features of the Constitution of India that are beyond the reach of constitutional amendment.[4] The application of this doctrine was first tested in Singapore in the case of Teo Soh Lung v Minister for Home Affairs where the High Court held that:

…the Kesavananda doctrine is not applicable to our Constitution. Considering the differences in the making of the Indian and our Constitution, it cannot be said that our Parliament’s power to amend our Constitution is limited in the same way as the Indian Parliament’s power to amend the Indian Constitution[5]

The High Court took an originalist interpretation of the Constitution to reach this conclusion positing that “[i]f the framers of the Singapore Constitution had intended limitations on the power of amendment, they would have expressly provided for such limitations”.[6] The applicant had tried to argue that constitutional amendments which sought to immunise national security decisions from judicial review violated the basic structure of the Constitution as being in contravention of the rule of law and the separation of powers and relied on the Supreme Court of India’s decision in Minerva Mills[7] to do so.

This remained the position until the recent decision of the Singapore Court of Appeal in the case of Yong Vui Kong v Public Prosecutor[8] (Yong Vui Kong).  Continue reading