Constitution of Singapore

Constitution of the Republic of Singapore
Old Parliament House, photographed in January 2006
Parliament of Singapore
Citation	1985 Rev. Ed., 1999 Rep.
Enacted by	Parliament of Singapore
Enacted	22 December 1965
Assented to	23 December 1965 [1]
Commenced	9 August 1965
Legislative history
Bill title	Republic of Singapore Independence Bill
Bill citation	Bill No. B 43 of 1965
Introduced by	Lee Kuan Yew
First reading	13 December 1965 [2]
Second reading	22 December 1965 [3]
Third reading	22 December 1965 [4]
Related legislation
Republic of Singapore Independence Act 1965(No. 9 of 1965,1985 Rev. Ed.) (dates above relate to this Act)
Status: In force

The court has the power and duty to ensure that the provisions of the Constitution are observed. The court also has a duty to declare invalid any exercise of power, legislative and executive, which exceeds the limits of the power conferred by the Constitution, or which contravenes any prohibition which the Constitution provides. ^{[note 1]}

The Supreme Court of Singapore. 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". ^[56] In 1980, when the Privy Council was still Singapore's final appellate court, it held in Ong Ah Chuan v. Public Prosecutor ^[57] 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". ^[58]

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". ^[59] This is in line with the locally held judicial philosophy which features deference to the Parliament and a strong presumption of constitutional validity. ^[60]

Such conservatism is reflected in the courts construing fundamental liberties narrowly in certain cases. For instance, in Rajeevan Edakalavan v. Public Prosecutor (1998), ^[61] 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: ^[62]

Any proposition to broaden the scope of the rights accorded to the accused should be addressed in the political and legislative arena. The Judiciary, whose duty is to ensure that the intention of Parliament as reflected in the Constitution and other legislation is adhered to, is an inappropriate forum. The Members of Parliament are freely elected by the people of Singapore. They represent the interests of the constituency who entrust them to act fairly, justly and reasonably. The right lies in the people to determine if any law passed be [ sic : by] Parliament goes against the principles of justice or otherwise. This right, the people exercise through the ballot box. The Judiciary is in no position to determine if a particular piece of legislation is fair or reasonable as what is fair or reasonable is very subjective. If anybody has the right to decide, it is the people of Singapore. The sensitive issues surrounding the scope of fundamental liberties should be raised through our representatives in Parliament who are the ones chosen by us to address our concerns. This is especially so with regards to matters which concern our well-being in society, of which fundamental liberties are a part.

On the other hand, in Yong Vui Kong v. Public Prosecutor (2010) ^[63] 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. ^[64]

In some cases, the courts have also demonstrated an unwillingness to consult foreign constitutional case law, and have crafted a "local conditions" rationale ^{[note 2]} 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". ^[65] This has been termed a conservative and restrictive approach that seems to undermine the court's duty to generously interpret fundamental liberties. ^[66] 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." ^[67]

A purposive approach to statutory interpretation was mandated in Singapore in 1993 by the enactment of section 9A of the Interpretation Act, ^[68] 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". ^[69] The Constitution of the Republic of Singapore Tribunal affirmed in Constitutional Reference No. 1 of 1995 ^[70] 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". ^[71]

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". ^[72] It may also be noted that although the court may depart from previously held constitutional interpretations, it cannot disregard the text entirely. ^[73]

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. ^[74] Examples of these principles include accommodative secularism, ^[75] the rule of law, ^[76] and the separation of powers. ^[77] 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. ^[55]

Additionally, the courts have read into the Constitution extratextual principles which either have the effect of expanding or limiting the ambits of fundamental liberties. In Ong Ah Chuan, ^[57] the Privy Council held that references to the word law in clauses such as Article 9(1) and Article 12(1) of the Constitution include "fundamental rules of natural justice", ^[78] which were later held by the Court of Appeal to be procedural rather than substantive in nature. ^[79] 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, ^[80] 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". ^[81]

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". ^[82] 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. ^[83] Similarly, the Parliamentary Elections Act ^[84] 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. ^[85]

Thio Li-ann has suggested that other Acts which have constitutional significance include the Internal Security Act ^[86] and the Supreme Court of Judicature Act. ^{[87] [88]}

Non-binding constitutional influences

Soft constitutional law

Dr. Tony Tan Keng Yam, 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. ^[89] Such soft laws act as a method of informal regulation against the backdrop of existing legislation. ^[90]

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, ^[91] 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. ^[92] 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. ^[93] 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. ^[92]

Soft law has also been described by academics as a method of influencing communitarian conduct or even enforcing constitutional standards in a subtle manner. ^[94] 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. ^[95]

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. ^[96]

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 ^[85]  – the Act was enacted pursuant to Article 63 of the Constitution – states that the privileges and immunities of Parliament are to be the same as those associated with the House of Commons of the United Kingdom. ^[97] 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. ^[98]

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 ^[99] 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". ^[100] 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. ^[101] 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. ^[93]

Public international law

As Singapore adopts a dualist rather than a monist view of law, public international law rules are not part of domestic law and cannot be enforced by the courts unless they have first been incorporated into domestic law in some way. ^[102] Customary international law is defined in the Statute of the International Court of Justice as "evidence of a general practice accepted as law". ^[103] 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 ^[63] that such rules can only be declared as part of the common law and cannot be directly incorporated into the Constitution. ^[104]

Unless an international treaty entered into by the Singapore Government has been given effect through an Act of Parliament, ^{[note 3]} it cannot be enforced as domestic law by the courts. ^[105] 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. ^[106]

Supremacy of the Constitution

A.V. Dicey (1835–1922) from the Harvard Law School Library's Legal Portrait Collection. Dicey wrote that three criteria must be satisfied before a constitution can be regarded as supreme.

According to British jurist and constitutional theorist Albert Venn Dicey, three legal criteria must be satisfied before a constitution can claim to be supreme: ^[107]

1. There must be codification, that is, the constitution must be written.
2. The constitution must be rigid.
3. Authority must be given to the courts to evaluate the constitutionality of legislative acts and declare them void if they are found to be inconsistent with the constitution.

Although Article 4 of the Singapore Constitution expressly declares that it is the supreme law of the land and the Constitution appears to satisfy Dicey's criteria, the view has been taken that it may not be supreme in practice and that Singapore's legal system is de facto characterised by parliamentary sovereignty. ^[74]

Codification

Dicey's first legal criterion for a constitution to be regarded as supreme is that it must be written. This requirement is necessary for the precise identification of constitutional provisions, which makes it more convenient for Parliament to make constitutional amendments, and provides the judiciary with a basic text against which to determine the constitutionality of any ordinary legislation. Without a written constitution, judicial review would almost be counter to the doctrine of separation of powers as judges would get to decide the contents and wording of the Constitution. ^[108] In Marbury v. Madison, ^[53] the US Supreme Court held that "the powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written". ^[109]

However, in Singapore not all legal rules having constitutional effect appear to be part of the Constitution. For example, white papers that contain quasi-constitutional principles would be extra-constitutional documents. By issuing such white papers, the Government may also trying to set guidelines on how the Constitution should be interpreted. Jaclyn Neo and Yvonne Lee view such documents as diluting the Constitution and blurring the line between constitutional law and ordinary legislation. ^[110]

Rigidity

The second legal criterion is that the constitution must be rigid. This is important to ensure that constitutional provisions can only be changed by an authority that is higher in status than the ordinary legislative body existing under the Constitution. ^[111] However, rigidity does not mean that the Constitution is completely immutable. If the Constitution is static, the nation's political development may be stunted. Instead, rigidity of the Constitution merely contemplates that compared to ordinary legislation, the Constitution should be more difficult to amend. ^[112]

Different amendment procedures apply to different parts of the Constitution. This is discussed in detail below. Most of the Articles of the Constitution may be amended by a bill enacted by Parliament if there is at least a supermajority of two-thirds of all elected MPs voting in favour of the bill during its Second and Third Readings in Parliament. ^[113] Since ordinary bills only need to be approved by at least a simple majority of all the MPs present and voting, ^[114] the supermajority requirement is more rigorous and gives the Constitution its rigid characteristic. However, the present ruling party, the People's Action Party ("PAP") has commanded a majority of more than two-thirds of the seats in Parliament since 1968. In addition, due to the presence of the party whip, all PAP MPs must vote in accordance with the party line save where the whip is lifted, usually for matters of conscience. ^[115] Thus, in substance the more stringent amendment requirement has not imposed any real limitation on Parliament's ability to amend the Constitution. ^[116]

One reason for having a special constitutional amendment procedure is because constitutional supremacy requires the Constitution to endure in the long term with its main principles largely unchanged. However, in Singapore, this concept has been undermined by numerous major constitutional amendments made after 1979. These amendments, which significantly altered the structure and nature of the government in Singapore, introduced the Group Representation Constituency and Elected President scheme, and inducted NCMPs and NMPs into Parliament. ^[116]

Judicial review

Dicey's third legal criterion for constitutional supremacy is the existence of an authority to pronounce upon the legal validity or constitutionality of laws passed by the nation's law-making body. While the Constitution does not expressly vest powers of constitutional judicial review in the courts, this role has been assumed by the judiciary. Hence, the third criterion appears to be fulfilled. ^[117]

However, the judiciary has used its power to adjudge executive actions and Acts of Parliament unconstitutional and void rather sparingly. To date, the only instance where the High Court struck down a statutory provision was in Taw Cheng Kong v. Public Prosecutor (1998). ^{[note 1]} It was short-lived, as the decision was later overturned by the Court of Appeal. Delivering the Court's judgment, Chief Justice Yong Pung How emphasised the limits of judicial review, stating that it is not for the courts to dictate the scope and ambit of a section or rule on its propriety. This is a matter which only Parliament can decide, and the courts can only interpret what is enacted. ^[118] This results in a conflict between the court's responsibility to be faithful to the Constitution, and its apparently restricted role in reviewing legislation. ^[119]

As mentioned earlier, the High Court also held that in judicially reviewing legislation, there should be a strong presumption of constitutional validity. The burden of proof falls on the applicant, who has to establish that the impugned statute violates the Constitution. ^[60] Furthermore, in Rajeevan Edakalavan ^[61] Chief Justice Yong said that the elected nature of Parliament vests in them the sole authority to determine sensitive issues surrounding the scope of fundamental liberties. In contrast, the judiciary's role is to ensure that the intention of Parliament as reflected in the Constitution and other legislation is adhered to. ^[120] The Chief Justice also held in Jabar bin Kadermastan v. Public Prosecutor (1995) ^[121] that: ^[122]

Any law which provides for the deprivation of a person's life or personal liberty, is valid and binding so long as it is validly passed by Parliament. The Court is not concerned with whether it is also fair, just and reasonable as well.

Similarly, in Chee Siok Chin v. Minister for Home Affairs (2005), ^[123] it was held that there is a need for judicial self-restraint and extreme caution with regards to whether a piece of legislation is an invalid restriction on constitutional rights. ^[124] In the case, the impugned legislation was sections 13A and 13B of the Miscellaneous Offences (Public Order and Nuisance) Act ("MOA"), ^[125] which make it an offence to cause harassment, alarm or distress. The High Court held that the fundamental right to freedom of speech and expression as well as the right to assembly guaranteed by Articles 14(1)(a) and (b) of the Constitution had been effectively restricted by the MOA. It held further that these rights are not absolute and are circumscribed by Article 14(2), which provides that Parliament may impose on the rights in Article 14(1) "such restrictions as it considers necessary or expedient" for various public interests. ^[126] The term necessary or expedient was said to confer on Parliament an extremely wide discretionary power, the court's sole task being to ascertain whether there exists a nexus between the object of the impugned law and any permissible ground of restriction in Article 14(2). The Government must satisfy the court that there is a factual basis on which it considered it "necessary or expedient" to impose the restriction. Evidence establishing such a factual basis must be analysed in a generous and not a pedantic approach, considering the parliamentary intention of the impugned law. ^[127]

The Grundnorm problem

Andrew Harding has posited that in Singapore it is Parliament, rather than the Constitution, which is supreme. This arises from the fact that the Constitution, which is supposed to be logically prior to the power of Parliament to legislate, was enacted by Parliament on 22 December 1965 through the Republic of Singapore Independence Act. As Parliament only got around to properly enacting a constitution on 22 December 1965, there was a hiatus between 9 August 1965 and that date, such that the legitimacy of laws passed between those dates can be questioned. Thus, the Grundnorm or basic norm of Singapore's legal system is Parliament rather than the Constitution. ^[128]

On the other hand, Kenneth Wheare has theorised that Parliament obtains the necessary constituent power to bring a constitution into force simply by virtue of the election of its members into office. ^[129] Since the constitution is a representation of the will of the people, and the people have exercised their will to elect MPs as their representatives, the Parliament has the requisite constituent power to enact the constitution. The hiatus was also solved when Parliament made the RSIA retrospective to 9 August 1965. ^[130]

Subjects dealt with by the Constitution

The Constitution deals with the following subjects in 14 parts:

Constitution of the Republic of Singapore
Chinese name
Traditional Chinese	新加坡共和國憲法
Simplified Chinese	新加坡共和国宪法
Transcriptions Standard Mandarin Hanyu Pinyin Xīnjiāpō Gònghéguó Xiànfǎ

Part	Subject
I.	Preliminary
II.	The Republic and the Constitution
III.	Protection of the sovereignty of the Republic of Singapore
IV.	Fundamental liberties Article 9: rights to life and personal liberty Article 10: prohibition of slavery and forced labour Article 11: protection against retrospective criminal laws and repeated trials Article 12: rights to equality and equal protection Article 13: prohibition of banishment and right to freedom of movement Article 14: rights to freedom of speech, assembly and association Article 15: right to freedom of religion Article 16: right to equality in education
V.	The Government
VI.	The Legislature
VII.	The Presidential Council for Minority Rights
VIII.	The Judiciary
IX.	The Public Service
X.	Citizenship
XI.	Financial provisions
XII.	Special powers against subversion and emergency powers
XIII.	General provisions
XIV.	Transitional provisions

Part I: Preliminary

This part gives the short title (despite there being no long title) to, defines certain terms and expressions used in, and establishes other rules for interpreting the Constitution.

Part II: The Republic and the Constitution

This part states that the Republic of Singapore is independent and that the Constitution is its supreme law (which is also the theoretical basis for judicial review in Singapore ^[131] ).

Amendment

The Constitution stipulates two different amendment procedures for different purposes. Most of the provisions in the Constitution may be amended with a supermajority of votes of all the elected MPs. However, a national referendum is required to amend certain provisions. This highlights the varying importance accorded to different types of constitutional provisions. ^[132]

While ordinary laws may be enacted with a simple majority of MPs present in Parliament voting in favour of them on their Second and Third Readings, ^[133] Article 5(2) of the Constitution provides that a bill seeking to amend the Constitution can only be passed if it is supported by a supermajority of two-thirds of the elected MPs on the Second and Third Readings of the bill in Parliament. Non-elected MPs such as NCMPs and NMPs are not allowed to vote on constitutional amendment bills. ^[134]

The above procedure does not apply to any bill seeking to amend Part III of the Constitution, which protects Singapore's sovereignty. Article 6, which is in Part III, prohibits the "surrender or transfer, either wholly or in part, of the sovereignty of the Republic of Singapore as an independent nation, whether by way of merger or incorporation with any other sovereign state or with any Federation, Confederation, country or territory or in any other manner whatsoever", and "relinquishment of control over the Singapore Police Force or the Singapore Armed Forces", unless this has been supported at a national referendum by not less than two-thirds of the total number of votes cast. Article 6 itself and other provisions in Part III cannot be amended unless a similar procedure is followed. ^[135]

The Istana, the President's official residence. When Articles 5(2A) and 5A of the Constitution are brought into force, a national referendum will be required if Parliament wishes to alter constitutional provisions relating to the President and he does not agree to the proposed changes.

The requirement for a national referendum also applies to Articles 5(2A) and 5A of the Constitution, though these provisions are not yet operational. Article 5(2A) states that unless the President, acting in his personal discretion, gives a contrary written direction to the Speaker, a bill seeking to amend certain key provisions in the Constitution requires the approval of at least two-thirds of the votes cast at a national referendum. Such amendments have been called core constitutional amendments. ^[136] These key provisions are the fundamental liberties in Part IV of the Constitution; provisions in Chapter 1 of Part V which deal with the President's election, powers, maintenance, immunity from suit, and removal from office; Article 93A which gives the Chief Justice or a Supreme Court judge nominated by him jurisdiction to determine whether a presidential election is valid; Articles 65 and 66 which, among other things, fix the maximum duration of Parliament at five years from the date of its first sitting, and require a general election to be held within three months after a dissolution of Parliament; any provision authorising the President to act in his personal discretion; and Articles 5(2A) and 5A themselves. ^[137]

Article 5A was introduced to deal with non-core constitutional amendments. The Article enables the President to veto proposed constitutional amendments that directly or indirectly circumvent or curtail the discretionary powers conferred on him by the Constitution. However, the power to veto is not absolute as the President may, acting on the Cabinet's advice, refer the matter to a constitutional tribunal under Article 100 for its opinion on whether a proposed amendment indeed has this effect. If the tribunal's view is different from the President's, the President is deemed to have assented to the bill on the day immediately following the day when the Tribunal pronounces its opinion in open court. However, if the tribunal upholds the President's view, the Prime Minister may refer the bill to a national referendum. The President's veto is overruled if not less than two-thirds of the total number of votes cast approve the proposed amendment. The President is deemed to have assented to the amendment on the day immediately following the day when the results of the referendum have been published in the Government Gazette. ^[138] This scheme prevents a gridlock that may arise if the Government calls for a new election to circumvent the President's veto. Thus, Article 5A provides a series of legal checks and balances between the President on the one hand, and the Prime Minister and Cabinet on the other. It increases the Constitution's rigidity as the power to amend the Constitution is no longer vested solely in Parliament. ^[139]

Articles 5(2A) and 5A have not yet been brought into force. In 1994, Deputy Prime Minister Lee Hsien Loong said this was because the complexity of the mechanism of both Articles surpassed what the Government had anticipated, and it was difficult to strike the fine balance between "the Government's need for operational flexibility" and the "President's duty to exercise effective oversight". ^[140] On 21 October 2008, in response to a question by NMP Thio Li-ann about the status of Article 5(2A), ^[141] Lee, now Prime Minister, said: ^[142]

Our clear and stated intention is to refine the [Elected President] scheme and to iron out the issues that can arise in the light of experience, before we bring the entrenchment provisions into operation and entrench the rules. ... While we have delayed entrenching the scheme, we have, over the years, made a practice of consulting the President on any amendment which affects his powers, and informing Parliament of the President's view in the Second Reading speech. With one exception, in practice, the President has supported all the amendments which affected his powers. Over the last two decades, we have fine-tuned and improved the system of the Elected President in many ways. ... If after five years, no further major changes are necessary, we will consider entrenching the provisions concerning the President's custodial powers.

The Government has adopted a piecemeal approach towards constitutional amendments to deal with changing political and social circumstances. ^[143]

Legislature's exercise of constituent power

Article 4 of the Constitution states that any law enacted by the Legislature which is inconsistent with the Constitution is, to the extent of the inconsistency, void. Interpreted literally, this Article seems to render Article 5 otiose as any law enacted to amend the Constitution will naturally be inconsistent with the existing text of the Constitution. To get around this conundrum, L.R. Penna has observed that the Malaysian courts have distinguished between the exercise of "constituent power" and "legislative power" by Parliament. ^[144] In Phang Chin Hock v. Public Prosecutor (1979), ^[145] Lord President Tun Mohamed Suffian Mohamed Hashim held that: ^[146]

... in construing art 4(1) and art 159 [the Malaysian equivalent to Article 5 of the Singapore Constitution], the rule of harmonious construction requires us to give effect to both provisions and to hold and we accordingly hold that Acts made by Parliament, complying with the conditions set out in art 159, are valid even if inconsistent with the Constitution, and that a distinction should be drawn between on the one hand Acts affecting the Constitution and on the other hand ordinary laws enacted in the ordinary way.

The position in Singapore is unclear since this issue has not been raised before the courts. However, it is arguable that they are likely to apply Phang Chin Hock as Articles 4 and 159 of the Constitution of Malaysia are in pari materia with Articles 4 and 5 of the Singapore Constitution. Essentially, this will involve interpreting Article 5 as vesting constituent power in the Legislature to amend the Constitution, and Article 4 as striking down only ordinary laws enacted by the Legislature in the exercise of legislative power. Such an interpretation allows Articles 4 and 5 to be harmoniously construed, and permits amendments to be made to the Constitution. ^[144] This is important as the Constitution represents the nation's philosophy, aims and objectives for attaining political stability and economic prosperity for the people, and thus must necessarily be adaptable to political and social developments. ^[112]

Basic features doctrine

In addition to the need to uphold constitutional supremacy and the principle of rigidity, the Constitution is also a living document that can be amended where necessary. ^[147] As the Constitution does not appear to place restrictions on the extent to which its provisions may be amended, the question of whether there are any implied restrictions on Parliament's power to amend the Constitution arises. If such limitations exist, they would serve as a safeguard against unrestrained amendment by the legislature and protect the essential constitutional features and structure. India takes this stand – the Supreme Court held in Kesavananda Bharati v. The State of Kerala (1973) ^[148] that there are certain implied basic features of the Indian Constitution that are not amenable to changes and amendment by Parliament. On the other hand, in Singapore it has been established that there are no implied limitations on Parliament's power to amend the Constitution. ^[149]

Position in India

The basic structure or basic features doctrine holds that there is an implied restriction on the powers of the legislature to amend the Constitution: it is precluded from amending the basic features of the Constitution. ^[150] The landmark case of Kesavananda Bharati established that the doctrine applies in India, highlighting that while Parliament's power to amend the Constitution extends to all its sections, essential features of the Constitution must not be altered. ^[151]

The Supreme Court of India which, in 1973, decided there are basic features of the Constitution of India that cannot be amended by Parliament

The development of the basic features doctrine in India can be attributed to the role of the judiciary in maintaining a balance between the powers of the Parliament and the judiciary. The Supreme Court perceived itself as the institutional guardian and protector of individual liberties against political aggression, ^[152] adopting a judicial role parallel to that of the Supreme Court of the United States as mentioned by Chief Justice John Marshall in Marbury v. Madison. ^[153]

Chief Justice Sarv Mittra Sikri, delivering the leading judgment of the Supreme Court, averred that "[e]very provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remains the same". He proceeded to lay down the basic structure of the Constitution, stating that it includes the supremacy of the Constitution; the republican and democratic form of government; the secular character of the Constitution; the separation of powers between the legislature, the executive and the judiciary; and the federal character of the Constitution. He said that these basic features are founded on the "dignity and freedom of the individual", which is of "supreme importance". ^[151]

On the other hand, Justice Ajit Nath Ray dissented and gave reasons for rejecting the basic features doctrine. He stated that since the Constitution is the source of all legal validity and is itself always valid, a constitutional amendment, being part of the Constitution itself, will also always be valid. The power to amend the Constitution is wide and unlimited, and there is neither a distinction nor any possibility of a difference between essential and non-essential features of the Constitution that may impede amendment. ^[154] In fact, if Parliament's power to amend is extinguished because of essential features that are not expressly defined in the Constitution, the courts would be creating a new constitution. Justice Ray presented other problems of the basic features doctrine, criticising it as being uncertain in scope. Without an evident definition of what the basic features are, the task of trying to amend the Constitution becomes unpredictable. ^[155] In his view, all the provisions of the Constitution are essential but this does not prohibit them from being amendable. ^[156]

Position in Singapore

In the High Court case of Teo Soh Lung v. Minister for Home Affairs (1989), ^[149] the applicant's counsel argued that the Singapore courts should recognise the basic features doctrine and thereby limit the power of Parliament to amend the Constitution. ^[157] The doctrine was rejected by Justice Frederick Arthur Chua. He noted that Article 5 of the Constitution does not place any limitations on Parliament's power to amend the Constitution, and concluded that if the framers of the Constitution had intended for such limitations to apply they would have expressly provided for them. ^[158] Justice Chua also referred to the Malaysian case Phang Chin Hock, ^[145] in which the Federal Court had rejected the basic features doctrine, stating that "if our Constitution makers had intended that their successors should not in any way alter their handiwork, it would have been perfectly easy for them to so provide; but nowhere in the Constitution does it appear that that was their intention". Moreover, if proposed constitutional amendments are only valid if they are consistent with its existing provisions this would render Article 159 of the Malaysian Constitution, which provides for amendment of the Constitution, "superfluous, for the Constitution cannot be changed or altered in any way, as if it has been carved in granite". ^[146]

Teo Soh Lung at a Singapore Democratic Party rally for the 2011 general election. In a case brought by Teo in 1989, the High Court said that the basic features doctrine does not apply in Singapore.

Justice Chua emphasised that fears of abuse of power by the Parliament should not lead to a denial of the power to amend the Constitution or restrict this power. ^[159] He referred to Loh Kooi Choon v. Government of Malaysia (1977), ^[160] where the Malaysian Federal Court said: "The fear of abuse of Parliament's power to amend the Constitution in any way they think fit cannot be an argument against the existence of such power, for abuse of power can always be struck down". ^[161] Furthermore, Chua asserted that allowing the courts to impose limitations on the legislature through the basic features doctrine, a judge-made rule, would amount to the judiciary usurping Parliament's legislative function. ^[162] A similar view was expressed in Phang Chin Hock by the Chief Justice of Malaya, Raja Azlan Shah: "A short answer to the fallacy of this doctrine is that it concedes to the court a more potent power of constitutional amendment through judicial legislation than the organ for and clearly chosen by the Constitution for the exercise of the amending power." This could infringe the separation of powers doctrine and blur the distinction between the functions of the judiciary and the legislature. ^[163]

The High Court in Teo Soh Lung also referred to Justice Ray's judgment in Kesavananda, stating that radical amendments should not always be disdained as they may bring about positive changes to ensure the smooth functioning of a nation. There are reasons for allowing the Constitution to be amended. New problems may arise in the future, and the Constitution may have to be modified to suit changing circumstances. ^[164] According to Justice Ray: "The framers of the Constitution did not put any limitation on the amending power because the end of a Constitution is the safety, the greatness and well-being of the people. Changes in the Constitution serve these great ends and carry out the real purposes of the Constitution." ^[165]

Justice Chua also relied on Lord Diplock's judgment in Hinds v. The Queen (1975), ^[166] in which his Lordship expressed the view that even fundamental provisions of a constitution on the Westminster model can be amended as long as the proper procedure provided by the constitution has been complied with: ^[167]

[W]here ... a constitution on the Westminster Model represents the final step in the attainment of full independence by the peoples of a former colony or protectorate, the constitution provides machinery whereby any of its provisions, whether relating to fundamental rights and freedoms or to the structure of the government and the allocation to its various organs of legislative, executive or judicial powers, may be altered by those people through their elected representatives in the Parliament acting by specified majorities ...

Additionally, Justice Chua said that due to the differences in the way the Singapore and Indian Constitutions were made, the Singapore Parliament's power to amend the Constitution is not limited in the manner the Indian Parliament's is when amending the Indian Constitution. ^[168] The Indian Constitution was framed by a constituent assembly, while Singapore's Constitution was put together by the Parliament out of three different documents, namely, the 1963 State Constitution, the RSIA, and provisions drawn from the Federal Constitution of Malaysia. ^[169] Parliament had plenary power to enact the RSIA from the political fact of Singapore's independence and status as a sovereign nation on 9 August 1965. ^[170]

Penna has observed that the basic features doctrine appears to be irrelevant in Singapore as the word amendment is defined to include "addition and repeal" in Article 5(3) of the Constitution. "Amendment" connotes a change to the existing law that does not amount to doing away with such a law entirely. On the other hand, "repeal" implies the abrogation of the entire law by a different statutory provision that subsequently comes into force. If Parliament is entitled to repeal provisions of the Constitution, this means there is no constitutional hindrance to substituting the current Constitution for a completely different and new one. Thus, this suggests there is no place for the basic features doctrine in constitutional amendments. ^[171] Similarly, Article 368(1) of the Indian Constitution, which was brought in by the Twenty-fourth Amendment, defines amendment as "addition, variation and repeal". ^[150] In Kesavananda the Supreme Court had acknowledged the validity of the Twenty-fourth Amendment, yet Chief Justice Sikri seemed not to have considered the meaning of repeal when enunciating the basic features doctrine. Instead, he had merely focused on the fact that an "amendment" to the Constitution means any addition or change to it. ^[171]

The High Court's decision in Teo Soh Lung remains the authority on whether the basic features doctrine applies in Singapore law, because when the decision was appealed the Court of Appeal held it was unnecessary for it to decide whether the power of Parliament to amend the Constitution can ever be limited. It left the issue open for decision in a future case. ^[172]

Significant amendments

Since 9 August 1965 when the Constitution came into force, 52 amendments have been made to it. Some of the significant ones are listed below.

• 1965. The Constitution was made amenable by a simple majority of all the elected MPs in Parliament. ^[30]
• 1970. To safeguard the rights of racial and religious minorities in Singapore, the Presidential Council was established. ^[173] Renamed the Presidential Council for Minority Rights in 1973, its main function is to scrutinise most of the bills passed by Parliament to ensure that they do not discriminate against any racial or religious community.
• 1979. The proportion of elected MPs required to amend the Constitution was returned to at least a two-thirds supermajority during the Second and Third Readings of a constitutional amendment bill. ^[174]
• 1984. Non-constituency Members of Parliament (NCMPs) were introduced. ^[175]
• 1988. Group Representation Constituencies (GRCs) were introduced. ^[176] These are electoral divisions or constituencies in Singapore, the MPs of which are voted into Parliament as a group. At least one member of each GRC must be a member of a minority community. ^[177]
• 1990. Nominated Members of Parliament (NMPs) were introduced to bring non-partisan voices into Parliament. ^[178]
• 1991. The Constitution was amended to provide for a popularly and directly elected president. ^[179]
• 1994. The Constitution of the Republic of Singapore Tribunal was established to provide a mechanism for the President, acting on Cabinet's advice, to refer to the Tribunal for its opinion any question as to the effect of any provision of the Constitution which has arisen or appears to likely to arise. ^[180]
• 2016. The concept of reserved elections for a community that has not held the office of President for 5 or more consecutive terms was added. ^[181]
• 2022. Ensures that Parliament has the right to define marriage and protect it from court challenges, the definition that a marriage is between a man and a woman. ^[182]

See also

• Law of Singapore

Notes

1. The High Court cited the following paper by the former Chief Justice of Australia: Harry Gibbs (1988), "The Court as Guardian of the Constitution: The Basic Principle", in Mohamed Salleh Abas; Visu Sinnadurai (eds.), Law, Justice and the Judiciary: Transnational Trends, Kuala Lumpur: Professional Law Book Publishers, pp. 51–66, ISBN   978-967995804-1 . This passage was also mentioned in Taw Cheng Kong v. Public Prosecutor [1998] 1 S.L.R.(R.) 78 at 88–89, para. 14, H.C. (Singapore) ("Taw Cheng Kong (H.C.)").
2. It was held in Tang Kin Hwa v. Traditional Chinese Medicine Practitioners Board [2005] SGHC 153,[2005] 4 S.L.R.(R.) 604 at 613–614, paras. 27–28, H.C.(Singapore), that English law which has been exported to many colonies has to be "cultivated with an acute awareness of the soil in which it has been transplanted", and thus close scrutiny for "appropriateness" on the basis on "general persuasiveness insofar as logic and reasoning are concerned" is warranted to serve the "ideal" of an "indigenous legal system sensitive to the needs and mores of the society of which it is a part". Therefore, foreign law should not be blindly followed "where either local conditions and/or reason and logic would dictate otherwise".
3. An example is the Geneva Conventions Act(Cap. 117,1985 Rev. Ed.), which was enacted in 1973 to give effect to the Geneva Conventions in Singapore.

References

Citations

1. A.P. Rajah(Speaker),"Message from the President of the Republic of Singapore (Assents to Bills Passed)",Singapore Parliamentary Debates, Official Report (24 December 1965), vol. 24, col. 557.
2. Lee Kuan Yew (Prime Minister), speech during the First Reading of the Republic of Singapore Independence Bill,Singapore Parliamentary Debates, Official Report (13 December 1965), vol. 24, col. 37.
3. Lee Kuan Yew, speech during the Second Reading of the Republic of Singapore Independence Bill,Singapore Parliamentary Debates, Official Report (22 December 2012), vol. 24, cols. 451–455.
4. Lee Kuan Yew, speech during the Third Reading of the Republic of Singapore Independence Bill,Singapore Parliamentary Debates, Official Report (22 December 2012), vol. 24, cols. 455–456.
5. Timothy J. O'Neill (Spring 1988), "Liberal Constitutionalism & Bureaucratic Discretion", Polity, 20 (3): 371–393 at 371, doi:10.2307/3234868, hdl: 11214/173 , JSTOR   3234868, S2CID   155625898 , cited in Thio Li-ann (2012), "The Province of Constitutional Law", A Treatise on Singapore Constitutional Law, Singapore: Academy Publishing, pp. 3–93 at 38, ISBN   978-981-07-1515-1 . Thio herself describes the primary objective of "generic constitutionalism" as "regulat[ing] state power through rule of law commitments and institutional checks and balances to assure accountability in public life and to secure the conditions for decent human life": at p. 38.
6. Bryan A. Garner, ed. (1999), "constitution", Black's Law Dictionary (7th ed.), St. Paul, Minn.: West, p.  306, ISBN   978-0-314-24130-6 .
7. Thio, Treatise, pp. 65–93.
8. Constitution of the State of Singapore 1963 in the Sabah, Sarawak and Singapore (State Constitutions) Order in Council 1963 (S.I. 1963 No. 1493, UK; reprinted as Gazette Notification (G.N.) Sp. No. S 1/1963), which was enacted under the Malaysia Act 1963 (1963 c. 35, UK), s. 4.
9. Originally the Federal Constitution Ordinance 1957 (No. 55 of 1957, Malaysia), and now the Archived 24 August 2014 at the Wayback Machine , archived from the original on 1 December 2012.
10. Republic of Singapore Independence Act 1965( No. 9 of 1965,1985 Rev. Ed. ) ("RSIA"), s. 6.
11. Kevin Tan Yew Lee (1989), "The Evolution of Singapore's Modern Constitution: Developments from 1945 to the Present Day", Singapore Academy of Law Journal , 1: 1–28 at 17, archived from the original on 27 September 2018.
12. Kevin Y[ew] L[ee] Tan (2005), "A Short Legal and Constitutional History of Singapore", in Kevin Y[ew] L[ee] Tan (ed.), Essays in Singapore Legal History, Singapore: Singapore Academy of Law; Marshall Cavendish Academic, pp. 27–72 at 37–39, ISBN   978-981-210-389-5 .
13. Singapore Order in Council 1946 (S. R. & O., 1946, No. 462, UK), dated 27 March 1946.
14. [Report of the] Constitutional Commission, Singapore [Chairman: George Rendel], Singapore: Printed by the Government Printer, 1954, OCLC   63847297 .
15. Singapore Colony Order in Council 1955 (S.I. 1955 No. 187, UK).
16. Tan, pp. 42–46.
17. Singapore (Constitution) Order in Council 1958 (S.I. 1958 No. 156, UK). See Kevin Y[ew] L[ee] Tan (November 2008), "Singapore's 1958 Constitution: Fifty Fascinating Facts from Fifty Years", Singapore Law Gazette, archived from the original on 4 March 2016.
18. Tan, pp. 47–50.
19. Tan, "The Evolution of Singapore's Modern Constitution", p. 14.
20. Jack Lee Tsen-Ta (1995), "Rediscovering the Constitution", Singapore Law Review, 16: 157–211 at 170, archived from the original on 30 June 2021, retrieved 24 December 2012.
21. By the RSIA, s. 6(3).
22. Land Acquisition Act (No. 41 of 1966), now Cap. 152,1985 Rev. Ed. See Lee Kuan Yew ( Prime Minister ), speech during the Second Reading of the Constitution (Amendment) Bill ,Singapore Parliamentary Debates, Official Report (22 December 1965), vol. 24, cols. 435–436.
23. Land Acquisition Act (Cap. 152, 1985 Rev. Ed), ss. 5 and 6.
24. RSIA, s. 1.
25. Constitution and Malaysia (Singapore Amendment) Act (No. 53 of 1965, Malaysia).
26. RSIA, s. 4.
27. RSIA, s. 5.
28. RSIA, s. 13(3)(a).
29. Tan, "A Short Legal and Constitutional History of Singapore", p. 48.
30. Constitution (Amendment) Act 1965 (No. 8 of 1965).
31. By the Constitution (Amendment) Act 1979 (No. 10 of 1979). For commentary, see Jayakumar, S. (1979), "Legislation Comment: The Constitution (Amendment) Act, 1979 (No. 10)", Malaya Law Review, 21: 111–118, archived from the original on 27 June 2021, retrieved 9 March 2022.
32. E[dmund] W[illiam] Barker ( Minister for Law and Science and Technology, and Leader of the House ), speech during the Second Reading of the Constitution (Amendment) Bill ,Singapore Parliamentary Debates, Official Report (30 March 1979), vol. 39, col. 295.
33. For example, it is referred to as such in The Statutes of the Republic of Singapore and on Singapore Statutes Online Archived 15 December 2017 at the Wayback Machine , a website maintained by the Attorney-General's Chambers.
34. Tan, "The Evolution of Singapore's Modern Constitution", p. 22.
35. New Zealand Bill of Rights Act 1990 (1990 No 109, 1994 Reprint Archived 23 December 2012 at the Wayback Machine , New Zealand).
36. Paul Rishworth; Grant Huscroft; Scott Optican; Richard Mahoney (2006), The New Zealand Bill of Rights, South Melbourne, Victoria; New York, NY: Oxford University Press, p. 4, ISBN   978-0-19-558361-8 .
37. 张黎衍, Li-ann Thio (1966), Report of the Constitutional Commission 1966 [chairman: Wee Chong Jin], Singapore: Government Printer, OCLC   51640681, archived from the original on 27 September 2018, para. 1 (terms of reference).
38. Li-ann Thio (2009), "The Passage of a Generation: Revisiting the Report of the 1966 Constitutional Commission", in Li-ann Thio; Kevin Y[ew] L[ee] Tan (eds.), Evolution of a Revolution: Forty Years of the Singapore Constitution, London, England; New York, NY: Routledge-Cavendish, pp. 7–49 at 11, ISBN   978-0-415-43862-9
39. Thio, "The Passage of a Generation", pp. 12–14.
40. David Marshall (21 December 1965), "Singapore's 'untidy' Constitution", The Straits Times , p. 12.
41. R[eginald] H[ugh] Hickling (1980), "Legislation Comment: Reprint of the Constitution of the Republic of Singapore", Malaya Law Review, 22: 142–144 at 142, archived from the original on 3 March 2016, retrieved 9 March 2022.
42. 1963 State Constitution, Art. 63 (now the Constitution, Art. 155).
43. Constitution, Art. 155(5).
44. Constitution, Art. 155(2).
45. See, for example, Tan, "The Evolution of Singapore's Modern Constitution", pp. 1–28.
46. Heng Kai Kok v. Attorney-General [1985–1986] S.L.R.(R.) 922, High Court (Singapore).
47. Heng Kai Kok, pp. 928–929, paras. 17 and 20.
48. The Statutes of the Republic of Singapore (1985 Rev. Ed.), Singapore: Law Revision Commission, 1986–present, OCLC 20190567.
49. Constitution of the Republic of Singapore (1985 Rev. Ed., 1999 Reprint Archived 12 May 2012 at the Wayback Machine ).
50. Tan Eng Hong v. Attorney-General [2012] SGCA 45 ,[2012] 4 S.L.R. 476, Court of Appeal (Singapore).
51. Tan Eng Hong, p. 506, para. 59.
52. Constitution, Arts. 2(1) (definition of existing law) and 162.
53. Marbury v. Madison 5 U.S. (1 Cranch ) 137 (1803), Supreme Court (US).
54. Chan Hiang Leng Colin v. Public Prosecutor [1994] ICHRL 26 , [1994] SGHC 207 , [1994] 3 S.L.R.(R.) [Singapore Law Reports (Reissue)] 209, archived from the original on 26 October 2012, High Court(Singapore).
55. Chan Hiang Leng Colin, p. 231, para. 50.
56. S[tanley] A[lexander] de Smith (1964), The New Commonwealth and its Constitutions, London: Stevens and Sons, p. 156, ISBN   978-0-420-38680-9 .
57. Ong Ah Chuan v. Public Prosecutor [1980] UKPC 32 , [1981] A.C. 648, [1979–1980] S.L.R.(R.) 710, Privy Council (on appeal from Singapore).
58. Minister of Home Affairs v. Fisher [1978] UKPC 4 , [1980] A.C. 319, Privy Council (on appeal from Bermuda), cited in Ong Ah Chuan, p. 721, para. 23, and in Taw Cheng Kong (H.C.), p. 90, para. 20. In the latter case the High Court commented at p. 90, para. 22: "[I]n approaching the issue of the constitutional validity of a statute, the courts must firstly presume that the legislation falls within the scope of Parliament's powers. At the same time, they must endeavour to give full effect to the fundamental rights conferred by Pt IV of the Constitution, construing the provisions conferring those rights liberally and scrutinising the impugned legislation."
59. Thio Li-ann (2009), "Protecting Rights", in Li-ann Thio; Kevin Y[ew] L[ee] Tan (eds.), Evolution of a Revolution: Forty Years of the Singapore Constitution, London: Routledge-Cavendish, pp. 193–233 at 214, ISBN   978-0-415-43862-9 .
60. Taw Cheng Kong (H.C.), p. 89, para. 16.
61. Rajeevan Edakalavan v. Public Prosecutor [1998] ICHRL 1 , [1998] 1 S.L.R.(R.) 10, H.C.(Singapore).
62. Rajeevan Edakalavan, p. 19, para. 21. See also Public Prosecutor v. Mazlan bin Maidun [1992] 3 S.L.R.(R.) 968, C.A. (Singapore).
63. Yong Vui Kong v. Public Prosecutor [2010] SGCA 20 ,[2010] 3 S.L.R. 489, C.A.(Singapore).
64. Yong Vui Kong, p. 500, para. 16, citing Ong Ah Chuan [1981] A.C. at p. 659.
65. Government of the State of Kelantan v. Government of the Federation of Malaya [1963] M.L.J. [Malaya Law Journal] 355 at 358, cited in Chan Hiang Leng Colin, p. 231, para. 51.
66. Thio, "Protecting Rights", p. 214.
67. Thio Li-ann (2012), "The Judiciary", A Treatise on Singapore Constitutional Law, Singapore: Academy Publishing, pp. 451–567 at 566, para. 10.294, ISBN   978-981-07-1515-1 .
68. Interpretation Act( Cap. 1,2002 Rev. Ed. ).
69. Interpretation Act, s. 9A(1). The term written law includes the Constitution: s. 2(1).
70. Constitutional Reference No. 1 of 1995 [1995] 1 S.L.R.(R.) 803, Constitution of the Republic of Singapore Tribunal.
71. Constitutional Reference No. 1 of 1995, p. 814, para. 44.
72. Lee, "Rediscovering the Constitution", p. 177.
73. Jack Lee Tsen-Ta (2010), "The Text through Time" (PDF), Statute Law Review, 31 (3): 217–237 at 221, doi:10.1093/slr/hmq012 , retrieved 24 December 2012.
74. Jaclyn Ling-Chien Neo; Yvonne C[hing] L[ing] Lee (2009), "Constitutional Supremacy: Still a Little Dicey?", in Li-ann Thio; Kevin Y[ew] L[ee] Tan (eds.), Evolution of a Revolution: Forty Years of the Singapore Constitution, London: Routledge-Cavendish, pp. 153–192 at 181, ISBN   978-0-415-43862-9 .
75. Nappalli Peter Williams v. Institute of Technical Education [1999] 2 S.L.R.(R.) 529 at 537, para. 28, C.A. (Singapore).
76. Chng Suan Tze v. Minister for Home Affairs [1988] SGCA 16, [1988] 2 S.L.R.(R.) [Singapore Law Reports (Reissue)] 525 at 552, para. 86, C.A. (Singapore), archived from the original Archived 26 April 2012 at the Wayback Machine on 24 December 2011.
77. Cheong Seok Leng v. Public Prosecutor [1988] S.L.R.(R.) 530 at 543, para. 44, H.C. (Singapore); Mohammad Faizal bin Sabtu v. Public Prosecutor [2012] SGHC 163 at para. 11, H.C.(Singapore).
78. Ong Ah Chuan, p. 722, para. 26.
79. Yong Vui Kong v. Attorney-General [2011] SGCA 9 ,[2011] 2 S.L.R. 1189 at 1242–1243, paras. 104–105, C.A.(Singapore). See Thio, "Protecting Rights", p. 220.
80. Public Prosecutor v. Koh Song Huat Benjamin [2005] SGDC 272 at para. 8, District Court (Singapore).
81. Chan Hiang Leng Colin, p. 235, para. 64.
82. Anthony King (2001), Does the United Kingdom Still Have a Constitution?, London: Sweet & Maxwell, p. 5, ISBN   978-0-421-75200-9 , cited in Thio, Treatise, p. 66.
83. Presidential Elections Act( Cap. 240A,2011 Rev. Ed. ).
84. Parliamentary Elections Act( Cap. 218,2011 Rev. Ed. ).
85. Parliament (Privileges, Immunities and Powers) Act( Cap. 217,2000 Rev. Ed. ).
86. Internal Security Act ( Cap. 143,1985 Rev. Ed. ) ("ISA"). Article 149 of the Constitution immunizes the ISA from inconsistency with certain fundamental liberties.
87. Supreme Court of Judicature Act( Cap. 322,2007 Rev. Ed. ).
88. Thio, Treatise, pp. 69–70.
89. Thio Li-ann (2004), "Constitutional 'Soft' Law and the Management of Religious Liberty and Order: The 2003 Declaration on Religious Harmony", Singapore Journal of Legal Studies: 414–443 at 414 and 434, SSRN   953599 .
90. Thio Li-ann (December 2009), "Between Eden and Armageddon: Navigating 'Religion' and 'Politics' in Singapore", Singapore Journal of Legal Studies: 365–405 at 404, SSRN   1543624 .
91. The Principles for Determining and Safeguarding the Accumulated Reserves of the Government and the Fifth Schedule Statutory Boards and Government Companies [Cmd. 5 of 1999], Singapore: Printed for the Government of Singapore by the Government Printers, 1999, OCLC   226180358 .
92. Thio Li-ann (2009), "In Search of the Singapore Constitution", in Li-ann Thio; Kevin Y[ew] L[ee] Tan (eds.), Evolution of a Revolution: Forty Years of the Singapore Constitution, London: Routledge-Cavendish, pp. 323–360 at 346, ISBN   978-0-415-43862-9 .
93. Thio Li-ann (11 August 2011), "The parameters of presidential powers" (PDF), The Straits Times (reproduced on the website of the National University of Singapore), p. A31, archived from the original (PDF) on 27 September 2018.
94. Thio, "Constitutional 'Soft' Law", p. 437.
95. Neo Hui Min (10 June 2003), "More than words, a S'pore way of life", The Straits Times, p. 1.
96. Kevin Y[ew] L[ee] Tan; Thio Li-ann (2010), "The Rise of Constitutionalism & Constitutional Law", Constitutional Law in Malaysia and Singapore (3rd ed.), Singapore: LexisNexis, pp. 1–52 at 49, ISBN   978-981-236-795-2 .
97. Thio, "In Search of the Singapore Constitution", p. 343.
98. Thio Li-ann( NMP )," Parliamentary Elections (Motion) ",Singapore Parliamentary Debates, Official Report (27 August 2008), vol. 84, col. 3328 ff.
99. Its report, Report of the Select Committee on the Constitution of the Republic of Singapore (Amendment No. 2) Bill [Bill No. 41/89], Singapore: Government of Singapore, 1990, OCLC   35566184 , was presented to Parliament on 15 March 1990.
100. Goh Chok Tong (First Deputy Prime Minister and Minister for Defence ), speech during the Third Reading of the Constitution of the Republic of Singapore (Amendment) Bill ,Singapore Parliamentary Debates, Official Report (29 March 1990), vol. 55, col. 1017.
101. S. Jayakumar ( Minister for Law )," Article 5(2A) of the Constitution (Operation of Constitutional Provisions) ",Singapore Parliamentary Debates, Official Report (12 February 2007), vol. 82, col. 1237.
102. Yong Vui Kong, p. 530, para. 89, citing Chung Chi Cheung v. R [1938] UKPC 75 , [1939] A.C. 160 at 167–168, P.C.(on appeal from Hong Kong).
103. Statute of the International Court of Justice, 3 Bevans 1179, 59 Stat. 1031, T.S. 993, 39 AJIL Supp. 215 (18 April 1946), archived from the original on 29 June 2011, Art. 38(1)(b).
104. Yong Vui Kong, pp. 530–531, para. 90–91.
105. Taw Cheng Kong (H.C.), pp. 106–107, para. 74, citing J.H. Rayner (Mincing Lane) Ltd. v. Department of Trade and Industry [1990] 2 A.C. 418 at 476, House of Lords (UK).
106. Yong Vui Kong, p. 519, para. 59.
107. L[akshmikanth] R[ao] Penna (1990), "The Diceyan Perspective of Supremacy and the Constitution of Singapore", Malaya Law Review, 32: 207–238 at 208, archived from the original on 28 September 2018, retrieved 9 March 2022, citing A[lbert] V[enn] Dicey (1982), "Parliamentary Sovereignty and Federalism", An Introduction to the Study of the Law of the Constitution (10th ed.), London: Macmillan, pp. 126–180, OCLC   611803999 ; see also A[lbert] V[enn] Dicey (1927) [1915], "Parliamentary Sovereignty and Federalism", An Introduction to the Study of the Law of the Constitution (8th ed.), London: Macmillan & Co., pp. 134–176 at 142–161, OCLC   5755153 .
108. Neo & Lee, pp. 157–158.
109. Marbury v. Madison 5 U.S. (1 Cranch ) 137, 176 (1803).
110. Neo & Lee, pp. 160–162.
111. Neo & Lee, p. 162.
112. Penna, p. 209.
113. Constitution, Art. 5(2).
114. Constitution, Art. 57(1).
115. Goh Chok Tong(First Deputy Prime Minister and Minister for Defence), speech during the Second Reading of the Constitution of the Republic of Singapore (Amendment No. 2) Bill ,Singapore Parliamentary Debates, Official Report (29 November 1989), vol. 54, cols. 698–699: "[O]n important issues like this one, they [Government MPs] are not allowed to vote against the Government unless the Whip is lifted. And we do not intend to do so, except in matters of conscience, because of the system of collective responsibility. PAP MPs often vote on issues, but this is done in closed-door party meetings. Once a vote is taken and the decision made, they are expected to abide by the majority decision."
116. Neo & Lee, p. 165.
117. Neo & Lee, p. 173.
118. Public Prosecutor v. Taw Cheng Kong [1998] SGCA 37, [1998] 2 S.L.R.(R.) 489 at 511–512, paras. 71–73, C.A. (Singapore), archived from the original on 13 April 2009 ("Taw Cheng Kong (C.A.)").
119. Neo & Lee, p. 174.
120. Rajeevan Edakalavan, pp. 18–19, para. 21.
121. Jabar bin Kadermastan v. Public Prosecutor [1995] ICHRL 11 , [1995] 1 S.L.R.(R.) 326, C.A.(Singapore).
122. Jabar, p. 343, para. 53.
123. Chee Siok Chin v. Minister for Home Affairs [2005] SGHC 216 ,[2006] 1 S.L.R.(R) 582, H.C.(Singapore).
124. Chee Siok Chin, p. 602, para. 48.
125. Miscellaneous Offences (Public Order and Nuisance) Act( Cap. 184,1997 Rev. Ed. ) ("MOA").
126. Chee Siok Chin, p. 600, para. 42.
127. Chee Siok Chin, pp. 602–603, para. 49.
128. A[ndrew] J[ames] Harding (1983), "Parliament and the Grundnorm in Singapore", Malaya Law Review, 25: 351–367 at 365–366, archived from the original on 28 September 2018, retrieved 9 March 2022.
129. K[enneth] C[linton] Wheare (1966), Modern Constitutions (2nd ed.), Oxford: Oxford University Press, p. 52, OCLC   885049 .
130. Neo & Lee, pp. 158–160.
131. Chan, Ying Ling (30 September 2013). "Judicial Review in Singapore". Singapore Law Review. Faculty of Law, National University of Singapore. Archived from the original on 28 December 2017. Retrieved 27 December 2017. Under Art 4, the Constitution is the supreme law of Singapore.
132. Neo & Lee, pp. 161–162.
133. Constitution, Art. 57(1): "Subject to this Constitution, all questions proposed for decision in Parliament shall be determined by a majority of the votes of the Members present and voting; and if, upon any question before Parliament, the votes of the Members are equally divided, the motion shall be lost."
134. Constitution, Art. 39(2).
135. Constitution, Art. 8.
136. Neo & Lee, p. 170.
137. Constitution, Arts. 5(2A)(a)–(e).
138. Constitution, Arts. 5A(1)–(6).
139. Neo & Lee, p. 171.
140. Lee Hsien Loong (Deputy Prime Minister), speech during the Second Reading of the Constitution of the Republic of Singapore (Amendment No. 2) Bill ,Singapore Parliamentary Debates, Official Report (25 August 1994), vol. 63, cols. 421–422.
141. Thio Li-ann(NMP), speech during the Second Reading of the Constitution of the Republic of Singapore (Amendment) Bill ,Singapore Parliamentary Debates, Official Report (20 October 2008), vol. 85, col. 369ff.
142. Lee Hsien Loong(Prime Minister), speech during the Second Reading of the Constitution of the Republic of Singapore (Amendment) Bill ,Singapore Parliamentary Debates, Official Report (21 October 2008), vol. 85, col. 532ff. The point was reiterated by Minister for Law K. Shanmugam in Parliament in February 2009: K. Shanmugam(Minister for Law)," Head R – Ministry of Law ",Singapore Parliamentary Debates, Official Report (13 February 2009), vol. 85, col. 3146ff.
143. Neo & Lee, pp. 172–173.
144. Penna, pp. 216–217.
145. Phang Chin Hock v. Public Prosecutor [1980] 1 M.L.J. [Malaya Law Journal] 70, Federal Court (Malaysia).
146. Phang Chin Hock, p. 72.
147. See, for example, K. Shanmugam ( Minister for Law )," Head R – Ministry of Law ",Singapore Parliamentary Debates, Official Report (13 February 2009), vol. 85, col. 3146ff.
148. Kesavananda Bharati v. The State of Kerala [1973] INSC 258 , A.I.R. 1973 S.C. 1461, Supreme Court (India), applied in Minerva Mills Ltd. v. Union of India [1980] INSC 141 , A.I.R. 1980 S.C. 1789, S.C.(India).
149. Teo Soh Lung v. Minister for Home Affairs [1989] 1 S.L.R.(R.) 461, H.C. (Singapore) ("Teo Soh Lung (H.C.)").
150. Penna, pp. 228–230.
151. Kesavananda Bharati, pp. 165.
152. C. Raj Kumar (Spring 2004), "International Human Rights Perspectives on the Fundamental Right to Education – Integration of Human Rights and Human Development in the Indian Constitution", Tulane Journal of International and Comparative Law , 12: 237–285 at 266.
153. Marbury v. Madison 5 U.S. (1 Cranch ) 137, 173 (1803).
154. Kesavananda Bharati, p. 410.
155. Kesavananda Bharati, p. 358.
156. A[ndrew] J[ames] Harding (1979), "The Death of a Doctrine? Phang Chin Hock v. Public Prosecutor", Malayan Law Review, 21: 365–374 at 367.
157. Teo Soh Lung (H.C.), p. 474, para. 30.
158. Teo Soh Lung (H.C.), p. 475, para. 34; and p. 479, para. 47.
159. Teo Soh Lung, p. 477, paras. 41–42.
160. Loh Kooi Choon v. Government of Malaysia [1977] 2 M.L.J. 187, F.C. (Malaysia).
161. Loh Kooi Choon, p. 74. See also Bank of Toronto v. Lambe [1887] UKPC 29 , (1887) 12 App. Cas. 575 at 586, P.C.(on appeal from Canada) and Attorney-General for Ontario v. Attorney-General for Canada [1912] UKPC 35 , [1912] A.C. 571 at 582, P.C.(on appeal from Canada).
162. Teo Soh Lung, p. 475, para. 35.
163. Phang Chin Hock, p. 190.
164. Kesavananda Bharati, paras. 923 and 959, cited in Teo Soh Lung (H.C.), pp. 475–476, paras. 35–36.
165. Kesavananda Bharati, para. 959, cited in Teo Soh Lung (H.C.), p. 476, para. 36.
166. Hinds v. The Queen [1975] UKPC 22 , [1977] A.C. 195, P.C.(on appeal from Jamaica).
167. Hinds, p. 214, cited in Teo Soh Lung (H.C.), p. 476, para. 37.
168. Teo Soh Lung (H.C.), p. 479, para. 47.
169. Neo & Lee, p. 159
170. Taw Cheng Kong (C.A.), pp. 500–501, paras. 30–32.
171. Penna, pp. 231–232.
172. Teo Soh Lung v. Minister for Home Affairs [1990] 1 S.L.R.(R.) 347 at 367–368, para. 44, C.A. (Singapore).
173. Constitution (Amendment) Act 1969 (No. 19 of 1969), in force on 9 January 1970.
174. Constitution (Amendment) Act 1979(No. 10 of 1979), in force on 4 May 1979.
175. Constitution of the Republic of Singapore (Amendment) Act 1984 (No. 16 of 1984), in force on 10 August 1984; and the Parliamentary Elections (Amendment) Act 1984 (No. 22 of 1984), in force on 22 August 1984.
176. Constitution of the Republic of Singapore (Amendment) Act 1988 (No. 9 of 1988), in force on 31 May 1988; Parliamentary Elections (Amendment) Act 1988([{{{archiverurl}}} No. 10 of 1988]), archived from the original on 22 April 2014, in force on 1 June 1988.
177. Constitution, Art. 39A.
178. Constitution of the Republic of Singapore (Amendment) Act 1990([{{{archiverurl}}} No. 11 of 1990]), archived from the original on 14 August 2014, in force on 10 September 1990.
179. Constitution of the Republic of Singapore (Amendment) Act 1991([{{{archiverurl}}} No. 5 of 1991]), archived from the original on 5 March 2016, in force on 30 November 1991.
180. Constitution of the Republic of Singapore (Amendment No. 2) Act 1994([{{{archiverurl}}} No. 17 of 1994]), archived from the original on 4 May 2014, in force on 1 October 1994.
181. Constitution of the Republic of Singapore (Amendment) Act 2016([{{{archiverurl}}} Cap. {{{cap}}} , {{{ed}}} Rev. Ed.]), archived from the original on 25 April 2021, in force on 1 April 2017.
182. "CNA Explains: How does Article 156 in the Constitution 'protect' marriage?". CNA. Retrieved 4 December 2022.

Sources

Cases

• Kesavananda Bharati v. The State of Kerala [1973] INSC 258 Archived 6 May 2015 at the Wayback Machine , A.I.R. 1973 S.C. 1461, Supreme Court (India).
• Phang Chin Hock v. Public Prosecutor [1980] 1 M.L.J. [Malaya Law Journal] 70, Federal Court (Malaysia).
• Ong Ah Chuan v. Public Prosecutor [1980] UKPC 32, [1981] A.C. 648, [1979–1980] S.L.R.(R.) [Singapore Law Reports (Reissue)] 710, Privy Council (on appeal from Singapore).
• Teo Soh Lung v. Minister for Home Affairs [1989] 1 S.L.R.(R.) 461, H.C. (Singapore) ("Teo Soh Lung (H.C.)").
• Chan Hiang Leng Colin v. Public Prosecutor [1994] ICHRL 26, [1994] SGHC 207, [1994] 3 S.L.R.(R.) 209, archived from the original on 26 October 2012, High Court (Singapore).
• Rajeevan Edakalavan v. Public Prosecutor [1998] ICHRL 1, [1998] 1 S.L.R.(R.) 10, H.C.(Singapore).
• Taw Cheng Kong v. Public Prosecutor [1998] 1 S.L.R.(R.) 78, H.C. (Singapore) ("Taw Cheng Kong (H.C.)").
• Public Prosecutor v. Taw Cheng Kong [1998] SGCA 37, [1998] 2 S.L.R.(R.) 489, Court of Appeal (Singapore), archived from the original on 13 April 2009 ("Taw Cheng Kong (C.A.)").
• Yong Vui Kong v. Public Prosecutor [2010] SGCA 20,[2010] 3 S.L.R. 489, C.A.(Singapore).
• Chee Siok Chin v. Minister for Home Affairs [2005] SGHC 216,[2006] 1 S.L.R.(R) 582, H.C.(Singapore).

Legislation

• Constitution of the Republic of Singapore (1985 Rev. Ed., 1999 Reprint Archived 12 May 2012 at the Wayback Machine ).
• Republic of Singapore Independence Act 1965(No. 9 of 1965,1985 Rev. Ed.) ("RSIA").

Other works

• Lee, Jack Tsen-Ta (1995), "Rediscovering the Constitution", Singapore Law Review, 16: 157–211, archived from the original on 30 June 2021, retrieved 24 December 2012.
• Neo, Jaclyn Ling-Chien; Lee, Yvonne C[hing] L[ing] Lee (2009), "Constitutional Supremacy: Still a Little Dicey?", in Thio, Li-ann; Tan, Kevin Y[ew] L[ee] (eds.), Evolution of a Revolution: Forty Years of the Singapore Constitution, London: Routledge-Cavendish, pp. 153–192, ISBN   978-0-415-43862-9 .
• Penna, L[akshmikanth] R[ao] (1990), "The Diceyan Perspective of Supremacy and the Constitution of Singapore", Malaya Law Review, 32: 207–238, archived from the original on 28 September 2018, retrieved 9 March 2022.
• Tan, Kevin Yew Lee (1989), "The Evolution of Singapore's Modern Constitution: Developments from 1945 to the Present Day", Singapore Academy of Law Journal , 1: 1–28, archived from the original on 27 September 2018.
• Tan, Kevin Y[ew] L[ee] (1999), "A Short Legal and Constitutional History of Singapore", in Tan, Kevin Y[ew] L[ee] (ed.), The Singapore Legal System, Singapore: Singapore University Press, pp. 26–66, ISBN   978-9971-69-213-1 .
• Thio, Li-ann (2004), "Constitutional 'Soft' Law and the Management of Religious Liberty and Order: The 2003 Declaration on Religious Harmony", Singapore Journal of Legal Studies: 414–443, SSRN   953599 .
• Thio, Li-ann (2009), "In Search of the Singapore Constitution", in Thio, Li-ann; Tan, Kevin Y[ew] L[ee] (eds.), Evolution of a Revolution: Forty Years of the Singapore Constitution, London: Routledge-Cavendish, pp. 323–360, ISBN   978-0-415-43862-9 .
• Thio, Li-ann (2009), "Protecting Rights", in Thio, Li-ann; Tan, Kevin Y[ew] L[ee] (eds.), Evolution of a Revolution: Forty Years of the Singapore Constitution, London: Routledge-Cavendish, pp. 193–233, ISBN   978-0-415-43862-9 .
• Thio, Li-ann (2012), A Treatise on Singapore Constitutional Law, Singapore: Academy Publishing, ISBN   978-981-07-1515-1 .

Further reading

Articles and websites

• Tan, Eugene; Chan, Gary (20 September 2011), "The Constitution", The Singapore Legal System, Singapore Academy of Law, archived from the original on 24 July 2011.
• Lee, Jack Tsen-Ta (2007), "Interpreting Bills of Rights: The Value of a Comparative Approach", International Journal of Constitutional Law, 5 (1): 122–152, doi: 10.1093/icon/mol042 .

Books

• 张黎衍, Li-ann Thio (1966), Report of the Constitutional Commission 1966 [chairman: Wee Chong Jin], Singapore: Government Printer, OCLC   51640681, archived from the original on 27 September 2018.
• Sheridan, L[ionel] A[stor], ed. (1961), Malaya and Singapore, the Borneo Territories: The Development of Its Laws and Constitution, London: Stevens, OCLC   1838341 .
• Tan, Kevin Y[ew] L[ee]; Thio, Li-ann (2010), Constitutional Law in Malaysia and Singapore (3rd ed.), Singapore: LexisNexis, ISBN   978-981-236-795-2 .
• Tan, Kevin Y[ew] L[ee] (2011), An Introduction to Singapore's Constitution (rev. (2nd) ed.), Singapore: Talisman Publishing, ISBN   978-981-08-6456-9 .
• Thio, Li-ann; Tan, Kevin Y[ew] L[ee], eds. (2009), Evolution of a Revolution: Forty Years of the Singapore Constitution, London; New York, N.Y.: Routledge-Cavendish, ISBN   978-0-415-43862-9 .

External links

• Official website of the Cabinet of Singapore
• Official website of the Government of Singapore
• Official website of the Parliament of Singapore
• Official website of the President of Singapore
• Official website of the Supreme Court of Singapore
• Singapore Statutes Online