THE RECOMMENDATIONS of the Constitutional Commission on the Elected Presidency have generated much national debate even before they are tabled before Parliament. While the spotlight has largely been on the recommendations relating to securing minority representation in the nation’s highest office, perhaps we should also pay heed to the wise men and women behind the decisions of the Elected President – the Council of Presidential Advisors (“CPA”).
REPORTING the death of former PresidentS R Nathan at the age of 92 on 22 August 2016, The Straits Times of 23 August stated in the first paragraph on its front page that he was “Singapore’s first elected and longest-serving president”.
It was soon pointed out that the first presidential election was held in 1993 and led to Ong Teng Cheong being elected to the highest office in the land. (ST couldn’t change its print edition, of course, but did update its website by removing the words first elected and, and publish a correction in the next day’s newspaper.)
However, some have questioned whether Nathan can be regarded as having been ‘elected’ at all, since the 1999 and 2005 elections he had participated in had been walkovers – he had been the only candidate declared eligible by the Presidential Elections Committee.
This raises an interesting question: who can be considered an elected President?
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. 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 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”
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. 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”
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”. 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 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 (Yong Vui Kong). Continue reading →
WHAT’S THE SIGNIFICANCE and relevance of Magna Carta, an 800-year old handwritten sheepskin parchment that is currently on a world tour having been to New York City, Luxembourg, China (Beijing, Guangzhou, and Shanghai), Hong Kong, and now Singapore?
Magna Carta was never intended as a “great charter” of people’s rights and liberties. In fact, when it was first created on June 15, 1215, it was essentially a peace treaty warding off a civil war. Continue reading →
When: Monday, 9 November 2015, 6:00 to 7:30 pm (registration begins at 5:30 pm) Where: Moot Court, NUS Faculty of Law, Bukit Timah Campus (directions to the law school may be found here)
More information about the speakers may be found here, and you can register here (please register by 4 November 2015)
To celebrate the 800th anniversary of the Magna Carta, the Hereford Cathedral Magna Carta is coming to Singapore where it will be displayed at the Supreme Court. In the lead up to this event, NUS Law is convening a discussion on the history and ongoing significance of the Magna Carta to the rule of law in general and to Singapore in particular. Continue reading →
When: Wednesday, 11 November 2015, 7:00 to 8:30 pm (registration begins at 6:30 pm). Where: Mochtar Riady Auditorium, Singapore Management University,
Level 5, Administration Building, 81 Victoria Street, Singapore 188065.
This event is open to the public. There is no charge to attend the talk, but registration is required.
To register, please click here.
Described as “England’s greatest export”, this year Magna Carta’s 800th birthday is being celebrated the world over. But exactly what is this thing we are commemorating? Was there a single Magna Carta or a series of them? Exactly what does the Charter say? Continue reading →
The Asian Constitutional Law Forum provides a venue for distinguished scholars and new scholars to share their research and ideas on Asian constitutional law, to expand collaborative research networks, and to facilitate publications. Continue reading →