Constitutionalism has been described as being "concerned with curbing oppressive government and preserving individual freedom while retaining a realm for the exercise of legitimate governmental power". A
constitution can therefore be described as "[t]he fundamental and
organic law of a nation or state, establishing the conception, character, and organization of its government, as well as prescribing the extent of its sovereign power and the manner of its exercise", or a specific statute containing provisions that serve those purposes. In this article, the term
constitution (with a lowercase
c) refers to the body of legal rules having constitutional effect in
Singapore, while
Constitution (with an uppercase
C) refers to the main
statute containing constitutional rules. In Singapore, the sources of
constitutional law may be grouped into two categories: those that are legally binding and those that are not. Legally binding sources include the text of the Constitution,
judicial interpretations of the Constitution, and other statutes. Non-binding sources are influences on constitutional law such as
soft law,
constitutional conventions, and
public international law.
Legally binding sources Text of the Constitution Singapore has a
written constitution. The text of the Singapore Constitution which took effect from 9 August 1965 was a patchwork of provisions drawn from three statutes: the Constitution of the State of Singapore 1963, the
Federal Constitution of Malaysia made applicable to Singapore by the Republic of Singapore Independence Act 1965, and the Republic of Singapore Independence Act itself. These provided the newly independent nation with a working constitution at short notice.
Constitution of the State of Singapore 1963 and its predecessors Since Singapore was founded as a
factory or trading post of the
East India Company in 1819, a number of laws having constitutional status have applied to it. Singapore became part of the
Straits Settlements in 1867, which were granted a
colonial constitution by way of
letters patent dated 4 February 1867 that established the
Legislative Council of the Straits Settlements. Further letters patent dated 17 November 1877 set up an
executive council and authorised the
Governor to appoint judges. Thereafter, a number of other legal instruments were issued to streamline the constitutional structure of the colony, but did not make significant changes to the arrangements put in place by the 1867 and 1877 letters patent. The last constitution of the Straits Settlements was based on letters patent dated 17 December 1911 as amended by letters patent and
royal instructions both dated 18 August 1924. After the
Japanese Occupation, the Straits Settlements were dissolved in 1946 and Singapore became a
Crown colony. Its new constitution, the Singapore
Order in Council 1946, established an executive council and a
legislative council which, for the first time, had a number of elected members. The constitution came into effect on 1 March 1948, and the first legislative elections in Singapore were held on 20 March that year. In 1953, a constitutional commission headed by Sir
George Rendel was set up to recommend further changes in the constitutional system, with the aim of increasing widespread participation in the central and local government of Singapore. The British Government accepted most of the Rendel Commission's recommendations in its report of February 1954 and implemented them by way of the Singapore Colony Order in Council 1955, commonly known as the Rendel Constitution. While the new
Legislative Assembly was a largely elected body, the colonial administration retained authority over administration, finance, internal security and law. The next stage in Singapore's constitutional development was its transformation from a colony to a self-governing state of the
British Empire. This was effected by the Singapore (Constitution) Order in Council 1958, which created the position of the
Yang di-Pertuan Negara as the head of state, a
prime minister and a wholly elected Legislative Assembly with 51 members. Subsequently, pursuant to the
Malaysia Agreement of 1963, Singapore merged with the
Federation of Malaysia, becoming one of its
states and losing colonial status. Singapore was granted a new state constitution in the form of the Constitution of the State of Singapore 1963. The provisions relating to the legislative and executive bodies of government remained much the same as those in the 1958 Order in Council. On the other hand, the judiciary was regarded as a federal matter and did not form a part of the State Constitution. At this time, there was no
bill of rights in the 1963 State Constitution, as the fundamental liberties in Part II of the Federal Constitution applied to Singapore.
Federal Constitution of Malaysia Certain provisions of the Constitution of Singapore are derived from the Malaysian Federal Constitution. This was effected through section 6(1) of the Republic of Singapore Independence Act 1965, Notably, the fundamental liberties in Part II of the Federal Constitution were made applicable to Singapore. However, Article 13 of the Federal Constitution which concerns the
right to property, was specifically omitted to ensure the constitutionality of the
Land Acquisition Act 1966 which authorises the
Government to
compulsorily acquire real estate.
Republic of Singapore Independence Act The Republic of Singapore Independence Act 1965 (RSIA) Apart from making the fundamental liberties in the Malaysian Federal Constitution applicable in Singapore, the RSIA also received the legislative and executive powers over Singapore, which were relinquished by Malaysia through its
Constitution and Malaysia (Singapore Amendment) Act 1965. The executive authority of Singapore was vested in the
President and made exercisable by him or by the
Cabinet, while the legislative powers of the
Yang di-Pertuan Agong (Head of State of Malaysia) and the
Parliament of Malaysia in respect of Singapore were vested in the President and the Parliament of Singapore. Furthermore, the RSIA empowered the President to "make such modifications in any written law as appear to him to be necessary or expedient in consequence of the enactment of this Act and in consequence of the independence of Singapore upon separation from Malaysia". This power lasted from 1965 to 1968. The Constitution (Amendment) Act 1965, which was enacted on the same day as the RSIA and also came into force on 9 August 1965, made the 1963 State Constitution amendable by a simple majority – that is, more than 50% – of all the
Members of Parliament on the
second and
third readings of a constitutional amendment
bill. The requirement of a two-thirds majority for amendment was only restored in 1979. The justification for the reversion given by the
Minister for Law,
E.W. Barker, was that "[a]ll consequential amendments that have been necessitated by our constitutional advancement have now been enacted". However, these amendments were made to the 1963 State Constitution; the amendment Acts were silent on whether they applied to the RSIA. Thus, although Parliament has made no attempt to amend the RSIA since 1965, it can theoretically be changed or even
repealed by a simple majority in Parliament. One problem this raises is even though the RSIA is categorised by the Government as a "constitutional document", legally speaking it is apparently not part of the consolidated Constitution. Constitutional scholar Dr. Kevin Tan has suggested it should be recognised as a
sui generis Act having a unique status. It may be that the RSIA's status is similar to that of the
New Zealand Bill of Rights Act 1990, which is also an ordinary
Act of Parliament. It has been said that while it is theoretically possible to amend or repeal the Bill of Rights Act by a simple majority of the
New Zealand Parliament, "any government intent on repeal or restrictive amendment of the Bill of Rights is likely to suffer extreme political difficulty and opprobrium". In order to safeguard minority interests in a newly independent Singapore and contain the
communist threat of the time, a constitutional commission chaired by
Chief Justice Wee Chong Jin was convened in 1966 to review the 1963 State Constitution. In its report,
Reprints of the Constitution In 1980, provisions from the three documents referred to above were consolidated into a single reprint for the first time. Containing 162 Articles and three schedules, this reprint was published in the
Government Gazette of 31 March 1980. Prior to the issuance of the 1980 Reprint, the Constitution had been criticised for being inaccessible due to its fragmented nature. The former
Chief Minister of Singapore,
David Marshall, commented that Singapore had "the untidiest and most confusing constitution that any country has started life with", while constitutional scholar
R.H. Hickling acknowledged that "the problem of the layman is ... to ascertain what a Constitution says". to issue authorised reprints of the Constitution In 1979, Parliament amended the 1963 State Constitution To achieve this task, the Attorney-General was given discretion to merge the existing provisions of the two Constitutions and make modifications that might be necessary or expedient due to Singapore's independent status; to rearrange the provisions; and to omit duplicated, inappropriate or inapplicable ones, among other things. Pursuant to this, the 1980 Reprint of the Constitution was issued. In addition, the President was empowered to authorise the Attorney-General to publish further reprints incorporating all constitutional amendments in force at the date of the authorisation. While some commentators have noted that the 1980 Reprint created theoretical issues, to date no practical problems have arisen in the application of the Constitution. In
Heng Kai Kok v. Attorney-General (1986), a claim for
wrongful dismissal by a police sergeant, one issue arising was whether a constitutional provision introduced in 1970 had
impliedly repealed an existing provision.
Judicial Commissioner Chan Sek Keong decided the case on other grounds, but observed on an
obiter basis that this argument was no longer relevant because only the 1970 provision appeared in the 1980 Reprint of the Constitution, and Article 155(3) of the Reprint states that "[a]ny reprint of the Constitution ... shall be deemed to be and shall be, without any question whatsoever in all courts of justice and for all purposes whatsoever, the authentic text of the Constitution of the Republic of Singapore in force as from the date specified in that reprint until superseded by the next or subsequent reprint". A revised edition of the Constitution was published as part of the 1985 Revised Edition of
The Statutes of the Republic of Singapore. The current reprint of the Constitution that is in force is the 1999 Reprint of the 1985 Revised Edition.
Judicial interpretation of the Constitution Another source of legally binding constitutional law consists of the body of
case law decided by the
courts interpreting the Constitution, and laying down fundamental constitutional principles which are not expressly mentioned in the Constitution.
Interpretation of the Constitution In the exercise of its
original jurisdiction – that is, its power to hear
cases for the first time – the
High Court carries out two types of judicial review:
judicial review of legislation, and
judicial review of administrative acts. Regarding the former, Article 4 of the Constitution states: "This Constitution is the supreme law of the Republic of Singapore and any law enacted by the Legislature after the commencement of this Constitution which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void." In
Tan Eng Hong v. Attorney-General (2012), the
Court of Appeal held that although the Article only refers to laws enacted after the Constitution's commencement on 9 August 1965, laws which pre-date the Constitution can also be invalidated by the court. In addition, Article 162 provides that ordinary laws that were in force prior to the Constitution coming into force on 9 August 1965 continue to apply after the Constitution's commencement but must be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Constitution. Thus, the Constitution reflects the principle established in the landmark decision of the
Supreme Court of the United States,
Marbury v. Madison (1803): since it is the role of the courts to interpret the law, they have power to decide whether ordinary laws are inconsistent with the Constitution and, if so, to declare such laws to be void. In the 1994 case
Chan Hiang Leng Colin v. Public Prosecutor the High Court adopted a similar stance, and also affirmed that declaring void administrative actions and decisions that infringe the Constitution is part of its responsibility: . Its lower division, the
High Court, exercises
judicial review to ensure that legislation and administrative acts are constitutional. Judicial attitudes inextricably shape and mould the results of constitutional interpretation. This is because, during the process of constitutional interpretation, "the private philosophies and prejudices of individual judges will inevitably emerge". In 1980, when the
British Privy Council was still Singapore's final appellate court, it held in
Ong Ah Chuan v. Public Prosecutor that where the fundamental liberties in the Constitution are concerned, the courts are to accord them "a generous interpretation ... suitable to give to individuals the full measure of the fundamental liberties referred to". However, it has been said that the Singapore judiciary has a conservative attitude when interpreting the Constitution as it seems to be "more protective of executive interests than individual freedoms". This is in line with the locally held judicial philosophy which features
deference to the Parliament and a strong
presumption of constitutional validity. Such conservatism is reflected in the courts construing fundamental liberties narrowly in certain cases. For instance, in
Rajeevan Edakalavan v. Public Prosecutor (1998), even though
Article 9(3) of the Constitution states that "[w]here a person is arrested, he ... shall be allowed to consult and be defended by a legal practitioner of his choice", the High Court declined to hold that there is any constitutional right to be informed of one's
right to counsel as the Constitution does not expressly mention such a right. Chief Justice
Yong Pung How held: On the other hand, in
Yong Vui Kong v. Public Prosecutor (2010) decided 12 years later, the Court of Appeal held that colourable legislation which purports to enact a 'law' as generally understood but which is in effect a legislative judgment, and legislation which is "of so absurd or arbitrary a nature that it could not possibly have been contemplated by our constitutional framers as being 'law' when they crafted the constitutional provisions protecting fundamental liberties", would violate
Article 9(1), despite the provision not explicitly referring to this. In some cases, the courts have also demonstrated an unwillingness to consult foreign constitutional case law, and have crafted a "local conditions" rationale which prescribes reading the Constitution "within its own four walls and not in the light of analogies drawn from other countries such as Great Britain, the United States of America or Australia". This has been termed a conservative and restrictive approach that seems to undermine the court's duty to generously interpret fundamental liberties. However, it has been noted that this approach to constitutional interpretation was never applied consistently, and that "it appears that the 'four walls' doctrine has quietly fallen out of fashion at least in practice, as courts now regularly consider foreign cases which have only persuasive, not precedential value. ... It is fair to say that the development of Singapore public law is not accomplished in a cloister sealed off from transnational models, but through a thoughtful engagement with foreign cases." A
purposive approach to
statutory interpretation was mandated in Singapore in 1993 by the enactment of section 9A of the Interpretation Act, which requires a court to prefer an interpretation that would "promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) ... to an interpretation that would not promote that purpose or object". The
Constitution of the Republic of Singapore Tribunal affirmed in
Constitutional Reference No. 1 of 1995 that the approach applies to constitutional interpretation as well. It stated: "It is well established ... that a purposive interpretation should be adopted in interpreting the Constitution to give effect to the intent and will of Parliament". The generous approach to constitutional interpretation mentioned in
Ong Ah Chuan might be said to accord with the purposive approach because the use of broad and general language in Articles of the Constitution dealing with fundamental liberties suggests a parliamentary intention to give courts the discretion "to interpret the Constitution based on prevailing social conditions". It may also be noted that although the court may depart from previously held constitutional interpretations, it cannot disregard the text entirely.
Fundamental constitutional principles The courts have been willing to uphold the spirit of the Constitution by recognising fundamental constitutional principles not expressly mentioned in the written Constitution which underlie the Constitution and form the theoretical basis of constitutionalism, its goal being to achieve
limited government. Examples of these principles include accommodative
secularism, the
rule of law, and the
separation of powers. Similarly, the court's power of judicial review is not expressly mentioned, but has been read into the Constitution by necessary implication from Article 4 of the Constitution. which were later held by the Court of Appeal to be procedural rather than substantive in nature. On the other hand, the courts have said that
freedom of speech must be balanced against the right of other people to be free from offence, and have restricted
freedom of religion in favour of "the sovereignty, integrity and unity of Singapore" which were said to be "undoubtedly the paramount mandate of the Constitution".
Other Acts of Parliament Some ordinary statutes which are not part of the Constitution may serve constitutional functions and therefore be regarded as "essential to the workings of small-c constitutions". The Constitution itself empowers Parliament to enact laws for certain purposes. For instance, Article 17(2) states that "[t]he President shall be elected by the citizens of Singapore in accordance with any law made by the Legislature". To regulate such elections, Parliament passed the Presidential Elections Act. Similarly, the Parliamentary Elections Act fulfils the requirements of Article 39(1), which provides that Parliament consists,
inter alia, of
elected Members of Parliament (MPs) and
Non-constituency Members of Parliament (NCMPs) who have been elected according to the procedure prescribed in a law made by the Legislature. In addition, Article 63 states that "[i]t shall be lawful for the Legislature by law to determine and regulate the privileges, immunities or powers of Parliament", and Parliament has done so by enacting the Parliament (Privileges, Immunities and Powers) Act. Thio Li-ann has suggested that other Acts which have constitutional significance include the
Internal Security Act and the Supreme Court of Judicature Act.
Non-binding constitutional influences Soft constitutional law , the seventh
President of Singapore, photographed in February 2001 before he took office. Interactions between his office and the
Government concerning the exercise of his
discretionary financial powers are governed by a non-binding
white paper issued in 1999. Soft constitutional law refers to a written set of non-binding precepts which exert some degree of legal influence in the realm of constitutional law. Forms of soft law include non-binding instruments containing recommendations, government
white papers, declarations, and informal rules like circulars or self-regulating
codes of conduct. Unlike
constitutional conventions, soft constitutional laws are authored by constitutional actors and reduced to written form, rather than derived from a custom or past practice. Such soft laws act as a method of informal regulation against the backdrop of existing legislation. Soft constitutional law can also serve as principles of engagement between institutions. One example is the 1999 white paper entitled
The Principles for Determining and Safeguarding the Accumulated Reserves of the Government and the Fifth Schedule Statutory Boards and Government Companies, which contains non-exhaustive principles for shaping institutional interactions between the President and the Government concerning the exercise of the President's
discretionary financial powers. One procedural guideline, which is not expressed in the Constitution, requires the President to inform the Government of his intention to gazette his opinion that one of its proposed transactions draws down on the nation's
past reserves, to give the Government an opportunity to avoid such a draw-down by transferring an equivalent sum from the current reserves to the past reserves. The principles adopted in the white paper remain binding unless either (or both) the Government or the President formally notifies the other that it no longer wishes to abide by them. One example is the issuance of the
Declaration of Religious Harmony in 2003, which was proposed by Prime Minister
Goh Chok Tong in October 2002 following a series of domestic events which had heightened racial and religious sensitivities.
Constitutional conventions Constitutional conventions are unwritten political customs which aid the smooth operation of the government. They are characterised as "rules of constitutional behaviour" which are "binding by and upon those who operate the Constitution", but are not legally enforceable. Such conventions which are consistently practised and not flouted become an intrinsic part of the constitution over time. However, since Singapore now has a written constitution, conventions play a much less significant role. In comparison, countries such as the United Kingdom which lack a written constitution derive a major part of constitutional law from conventions. Back in Singapore's colonial days, the Government adopted many constitutional conventions from the United Kingdom. After independence, an attempt was made to incorporate many of these
Westminster conventions into the new written constitution. For example, section 3 of the Parliament (Privileges, Immunities and Powers) Act In addition, Article 21(1) of the Constitution embodies the constitutionally recognised Westminster convention that the President generally acts on the advice of the Cabinet. Aside from adopted Westminster conventions, indigenous conventions have since developed or are developing to cater to local needs. During parliamentary debates in 1990 on the introduction of the
Nominated Member of Parliament (NMP) scheme, the First Deputy Prime Minister and
Minister for Defence,
Goh Chok Tong, noted that the
select committee tasked to look into the issue had considered whether NMPs should be required to sever any ties they had with
political parties and decided that it was unnecessary as it was "far better to leave ... conventions and practice to evolve". In 2007,
Law Minister S. Jayakumar declared that the Government "made it a practice to always seek the President's views whenever it intends to move Constitutional amendments that affect the relevant provisions" concerning his discretionary powers. It has also been said that by convention it is a well-accepted practice that the President engages in charitable and community welfare work without government objection. Customary international law is defined in the
Statute of the International Court of Justice as "evidence of a general practice accepted as law". Rules of customary international law can be declared by courts to be part of domestic law under certain conditions. However, they are not a source of constitutional law, because the Court of Appeal held in
Yong Vui Kong Unless an
international treaty entered into by the Singapore Government has been given effect through an Act of Parliament, it cannot be enforced as domestic law by the courts. Nonetheless, such international obligations exert an influence on constitutional interpretation as the Court of Appeal has held that "the Singapore Constitution[ ] should, as far as possible, be interpreted consistently with Singapore's international legal obligations". However, it would not be appropriate for courts to refer to an
international human rights norm if it does not accord with the way the constitutional text is worded, or if the history of the Constitution shows there was an intention to specifically exclude such a norm. ==Supremacy of the Constitution==