Professional Documents
Culture Documents
I N T R O D U C T I O N
Introduction
Approaching the study of constitutional law
1. Big ideas, little rules and context
a. Necessary to know big ideas/concepts, the detailed legal rules, as well as the context in which they operate –
i.e., the Singaporean context.
b. Although the main focus of the course will be on legal aspects, it is equally important to know background
political philosophy as well as theories of justice.
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CONSTITUTIONALISM, CONSTITUTIONAL
SUPREMACY, RULE OF LAW
Province of Constitutional & Administrative Law: Law, politics and public philosophy
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Contract law aspect: ITE’s policy was a valid contractual obligation binding on the appellant. His
conduct in refusing to follow the regulations was an act equal to failure to carry out contractual
obligations.
o [33]: “There was no valid reason why the appellant should be excused from performing his
contractual obligations. His conduct in refusing to follow the regulations was an act equal
to failure to carry out contractual obligations.”
New Frontiers
Does constitutional law apply to cyberspace?
o “We are finding our way in this regime but my own philosophical approach is that it is no different from
physical space. When we make it a no man's land, everyone is fair game and then we get people lynched. The
worst instincts of people come out sometimes when they have anonymity and they feel they can say and do
everything without the controlling framework of social norms. I don't think the concept of freedom justifies
that... There is a line between bad manners and harmful conduct.” – Law Minister K. Shanmugam, Rule of Law
Symposium (2014)
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Rule/Remarks
Confucian idealism: The government comprises honorable and respectable men who should be trusted with
powers. Law should facilitate, rather than restrain government.
o The Confucian leader is the Junzi, who is a gentleman guided by Li (personal morality, proprietary) and Ren
(benevolence)
o Instead of not being able to trust anyone, society is exhorted to differentiate between different groups of
people, some of which are more trustworthy than others (and therefore entitled to govern)
o Less emphasis on individual rights; power may be indivisible and can be held by one moral man.
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Paternal Democracy
To be distinguished from ‘paternalism’:
o ‘Paternalism’: ‘Father knows best ideology/attitude; “nanny state” culture
o ‘Paternal’: Changing relationship between a parent and child, with need for adjustments as the child grows. In a
political sense, these adjustments primarily refer to the (i) political developments and (ii) demands by the
electorate for stronger political accountability/political participation which occur as a country develops
economically and the electorate grows more mature, wealthy and literate (Thio’s Treatise, p. 122).
Past:
Clear “OB” markers/Mentality that only politicians should have the right to engage in political discourse: For
example, Catherine Lim published an article criticizing ministerial salaries, arguing that they reflected a great
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“effective divide” between the Government and the public. She then received a sharp response from the PM’s press
secretary, as well as statements that those wishing to comment on political matters should join a political party. In his
2004 speech to the Harvard Club, then deputy PM Lee Hsien Loong characterised Ms Lim’s actions as one which had
led to an “out-of-bounds marker [being] firmly planted.”
Participants had to respect hierarchy in conducting debate: For example, political leaders had to be addressed
differentially
Insulation of certain topics from frank debate as they were deemed too sensitive (e.g. race/religion issues).
Present:
In Singapore, a more active and participative political culture has clearly emerged in Singapore and has accelerated in
the aftermath of the ‘watershed’ 2011 GE. Some concrete changes/examples:
o 2004 Harvard Club speech: Then Deputy PM Lee’s speech made clear the government’s intentions to
promote a more participatory culture in lieu of a Nanny state with a disengaged citizenry. In particular, he
clearly stated that the Government would “pull back from being all things to citizens”. For example,
disagreement with government policies would not necessarily imply rebellion; instead, the Government
would render “dispassionate and factual” responses to “constructive dissent”.
o 2011 GE: The PM acknowledged that the results of the GE reflected a rise in political consciousness and a
desire for more alternative voices in Parliament as well as a less authoritarian style of governance (Thio’s
Treatise, p. 122). In a speech delivered at the swearing-in Ceremony for the new Cabinet, he noted that
Singapore had “entered a new phase in its political development” with the entry of “more interest groups
and alternative views”. Nevertheless, the PM also stressed that Singaporeans had to remain united the big
issues and learn to recognise the fundamental realities facing Singapore, a small country in Southeast Asia.
o A new public ethos is being forged which reflects a consciousness on the part of government leaders that
they must be accountable and responsive to public sentiment. (Thio’s Treatise, p. 760)
The Constitution reflects the conditions, realities, experience and history of Singapore:
Case/Article Vellama Marie Muthu v AG [2012] SGHC 155 at [48]
Rule/Remarks Pillai J at [48]: “The Constitution sets out the foundational structure and arrangements of
Singapore’s public governance. As an independent nation of almost 50 years, the Constitution
reflects the conditions, realities, experience and history of Singapore. It contains fundamental
elements from our British colonial history, our self-government, our brief Malaysian experience,
and refinements introduced since independence in 1965. Whilst refinements have been
introduced to address new imperatives, the basic framework of our inherited colonial
constitution has not changed.”
The green-light approach: In Chan Sek Keong, “Judicial Review – From Angst to Empathy” (2010)
22 SAcLJ 469, CJ Chan expressed plainly his opinion that judicial review is a “function of socio-
political attitude in the particular community” (at 479), and espoused a certain “green-light”
approach towards administrative law for Singapore’s context. On this view, public administration
is not principally about stopping bad administrative practices but encouraging good ones: “in
other words, seek good government through the political process and public avenues (e.g. public
discourse/debate) rather than redress bad government through the courts” (at 480).
o Benefits of a green-light approach, according to CJ Chan: “Under a green-light
approach, the courts can play their role in promoting the public interest by applying a
more discriminating test of locus standi to balance the rights of the individual and the
rights of the state in the implementation of sound policies in a lawful manner.”
The red-light approach: In the words of Beatson, Matthews, and Elliott’s Administrative Law,
Text and Materials, (4thEd) at 2-3 “it is the courts which are centrally charged with securing good
administration, while the emphasis is on administrative law as a control upon government”.
Singapore’s history, security, social circumstances, economic circumstances, and political-legal culture:
History Former British colony, no political turnover post-independence
o In fact, PAP vote share increased by 10% in 2015 GE as compared to 2011 GE.
How have colonial laws been treated? Have they been accepted/rejected?
Security Public order and security is highly prioritized in Singapore
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AG Rajah, Judicial Review – Politics, Policy & the Separation of Powers (2016): “It
would not be an overstatement to state that Singaporeans prize our unique sense of
security and consider freedom from crime a societal right.”
Emphasis on shielding the country from internal and external threats such as
communism, terrorism and communalism.
Social Singapore’s perennial sensitivities as a by-product if its multicultural, multiracial and
multi-religious population: Maintaining racial and religious harmony is a necessity and is
a topic which has consistently dominated public discourse.
Need to protect against culture wars
o Exacerbated by the internet and social media, which have made it easier for
people to offend and take offence – one thoughtless comment can provoke a
self-righteous mob reaction and public lynching
PM Lee, 66th Anniversary Inter-Religious Organisation (2015): “To maintain harmony
in our multi-racial and multi-religious society, the Government must take a watchful,
prudent and hands-on approach... Our limits may be stricter than some other societies,
but we make no apology for that.”
Economic Singapore, as a developmentalist state with a managed economy, prides itself on its
economic efficiency
Although Singapore is not a welfare state, it does have social safety nets e.g. Silver
Support scheme for 150,000 needy citizens
Trade-off theory: Belief that political liberty and economic development are at odds
with one another. Political stability promotes economic growth, but political liberty can
lead to instability which would, conversely, hamper economic development. Based on
this view, liberal ideas are not preferred as they may promote political instability.
Emergence of fiscal constitutionalism, which concerns how the constitution regulates
government spending -> office of the elected presidency, need to safeguard hard
earned reserves?
Currently in flux
Political-legal culture Dominant political ideology is communitarianism, which maintains that it is necessary
and legitimate for society to articulate what is good and what the good life means
(Amitai Etzioni)
o VS classical liberalism, under which each individual should be given the right
to formulate the good on his or her own
Some examples:
o 1991 – Shared Values White Paper:
o 2001 – Government banned 100 porn sites as a “statement of our values”
o 2008 – PP v Kwong Kok Hing [2008]: “Our criminal law is... the public’s
expression of communitarian values to be promoted, defended and preserved.
These communitarian values include the preservation of morality, the
protection of the person, the preservation of public peace and order, respect
for institutions and preservation of the state’s wider interests.”
o 2013 – MDA ban on Ashley Madison: “It aggressively promotes and facilitates
extramarital affairs... It is against the public interest to allow Ashley Madison
to promote its website in flagrant disregard of our family values and public
morality.”
Change in leadership styles: Gradual shift from ‘soft authoritarianism’ to public
servanthood:
o “Be humble in victory. As MPs, always remember we are servants of the
people, not masters... Listen hard to voter concerns, help them to tackle
pressing needs, and convey their worries and aspirations to the Government.
Persuade them to support policies which are in their own long term benefit,
while helping the Government to formulate good policies and stay in close
touch with the people.” (Letter from PM LHL to PAP MPs on Rules of
Prudence, post-2015 GE)
o Previously: Public servants had to be treated and spoken to deferentially, even
in public debates (‘feudal’ mentality); cf former PM Goh’s leadership style
(“elder brother” approach VS LKY’s far more authoritative stance)
Greater participation from the public: Engaging the public, promoting conversation
and consultation, active citizenship, civic virtue and civility
o PM Lee’s Harvard Club Speech
The Constitution – Its Character & Content: Power, Justice and Culture
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o While power and justice are more universalized, culture places the constitution in context – relates to that
particular country’s unique history and identity.
1. Foundational legal document
2. Fount of legitimacy
a. Every other law derives its legitimacy from it
3. Apex or higher law (positivisation of natural law)
4. Constitution as unifying “Civil Religion”
a. Plays the role that a religion would play in terms of identity, integration etc.
b. Contains rituals, symbols etc. (e.g. First Schedule Oaths)
Types of constitutions
Federal/Unitary
Big “C” and small “c”
o Big “C” Constitution: Refers to the written document itself
o Small “c” constitution: Includes unwritten constitutions (e.g. UK)
Written/unwritten
o May be a ‘documentary’ text (by deliberation)
o Or may be unwritten – e.g. through custom, convention or case law (by organic, unconscious evolution)
Constitutionalism
Origin of Constitutionalism
Before the Constitution was supreme, what or who might have been supreme? In the old days, the highest authority
typically belonged to an absolute monarch (e.g. King/Queen in a Westminster system).
Thus, there was an inherent tension between the sovereign King and the law.
o Since the King was supreme, the King’s authority could only be questioned on the basis of natural law.
o This gave rise to the ancient clash between positivism and natural law.
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This idea – that all political power ultimately lies in the people, and not the king – reflected a conceptual shift away from
absolutism/indivisible power (where the monarch carried God-ordained authority) to popular sovereignty, where
power vests not in the King, but in the people.
o Thus, the principle of limited government and constitutionalism was essentially a reaction to the political
ideology of absolutism. Prof Thio submits that every new political idea is essentially a response/reaction to an
old one.
When one divides power (i.e. in a popular democracy), it is necessary to draw boundaries. Why is this so?
o Boundaries define freedoms
o This is the benefit of having a written constitution – it ensures that institutions/bodies only exercise whatever
powers they have explicitly been granted.
o One recurring question is this: Who is the final arbiter in defining these boundaries? Is it the Court?
Definition of Constitutionalism
Constitutionalism refers to the idea that the constitution is “objectified” by articulated limits – i.e. it exists separately
from immediate power-holders who cannot direct the polity according to their subjective will. It is heavily premised on
the concepts of popular sovereignty and natural law (Perry Patterson).
There are two key aspects of Constitutionalism:
o Restraint of power: The constitution effectively restrains governmental action and protect the
individual/minorities from the despotic exercise of political authority through the division of power (Friedrich).
(i.e. limits power)
Restrains power through checks
o Guidance of power: The constitution also guides the use of powers (i.e. defines how power is channeled)
Guides power by delineating the purposes for which power can be exercised.
E.g. Hypothetical provision that “Singapore should be a green country” This would necessarily
impose limits on Singapore’s economic, social policy etc.
Cf Anti-constitutionalism, under which power is organized around the whim of one man or group
Constitutionalism vs Totalitarianism
How constitutional design may be marshalled to curb any of these expressions of totalitarianism remains a central focus
of constitutionalism.
o The use of law to temper power and submit will to reason – and thereby combat totalitarianism – is the central
object of constitutionalism.
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Constitutional text The Constitutional text is a legal instrument with supreme legal force, which may
only be amended by special procedure.
However, although the virtue of a text is its relative clarity as well as its ability to
delineate the powers and functions of institutions and processes with specify, it is by
no means exhaustive nor determinative. It is necessary to have regard to other
constitutional sources.
NB: Since the constitution does not exhaustively stipulate all government’s powers
and functions, there are certain constitutional principles which may be implied from
the structure and history of the constitution. Moses Hinds v The Queen – Many
Westminster-based constitutions have much “left to necessary implication”
Legislation Statutes which have constitutional significance, in giving effect to constitutional
provisions mandating the establishment of certain laws or institutions, or which curtail
fundamental rights
E.g. Internal Security Act, Presidential Elections Act, Maintenance of Religious
Harmony Act
Case law Judicial decisions may provide principles which shape the manner in which the
Constitution is interpreted and understood.
For example, Ong Ah Chuan is authority for the proposition that the Constitution
should be interpreted “as sui generis, calling for principles of its own, suitable to
its character”, and that it should be interpreted broadly in a generous manner
Constitutional Constitutional conventions are maxims of political morality observed and derived
conventions from long practice, which have played an important role in the working of the
constitution in the Commonwealth.
They are generally considered distinct from the law as they are not binding or
justiciable. They do not exist in a legal vacuum but operate within an existing legal
framework, providing “the flesh which clothes the dry bones of the law; they make the
legal constitution work; they keep in touch with the growth of ideas” (The Law and the
Constutution, Sir Ivor Jennings).
Constitutional conventions may be:
o Codified: E.g. Art 21(1) – President acts on the advice of the Cabinet
o Developing: E.g. The Government has made it a practice “to always seek
the President’s views whenever it intends to move Constitutional
amendments that affect the relevant provisions” (Jayakumar, 82 SPR, 12
Feb 2007)
Singapore has adopted many of UK’s constitutional conventions and positivised these
unwritten laws by turning them into written laws. (Benefits of having a written
constitution – Can use it to define and outline whichever laws and customs you want
to make legally binding.)
Judicial declarations Judicial declarations of unwritten:
Principles: e.g. “law” is defined as “fundamental rules of natural justice” (Ong Ah
Chuan v PP (1981), Yong Vui Kong v AG (2011))
Duties: e.g. Art 49 does not stipulate when the PM must call by-elections to fill
vacancies in SMCs. In Vellama v AG, it was held that although the PM has a discretion
as to when to call the by-election (i.e. the court cannot stipulate a specific period), a
duty to call a by-election within a reasonable time could be implied into the article.
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NB: Singapore’s constitution is primarily a Westminster-based constitution, owing to Singapore’s historical development
and colonial heritage.
Legal transplantation: Singapore’s constitution is “based essentially on the Westminster model and adopts and codifies
most, if not all, of the laws, customs, conventions and practices of the British constitutional and parliamentary system”
(JB Jeyaretnam v AG [1987]).
Features of a Westminster-based constitution:
o Freely-elected legislative chamber, secret ballot.
o Electors have a real choice between 2+ political parties
o Concentrated political power in a collective and responsible cabinet, headed by PM commanding the
confidence of the majority in the (predominantly) elected chamber
o Ministerial accountability to Parliament
o A recognised opposition (akin to Her Majesty’s Loyal Opposition); acting as an ‘executive in waiting’;
o Non‐partisan constitutional bureaucracy + expert civil service
o Parliamentary sovereignty with the unity of the executive and the legislature (‘whip’ and party system)
o A set of constitutional conventions
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May be interpreted as part of ‘higher law’ binding both governor and governed
Multiple competing conceptions of these constitutional principles
Constitutional principles interact with one another
Secularism
Two types of secularism: Anti-theocratic and anti-religious. Singapore’s approach is anti-theocratic, nut not anti-
religious.
o Singapore’s secularism has been described as “secularism with a soul”/”accommodative secularism”, that is, “a
system that respects the role that can be played by religious life in Singapore”. (Singapore Parliamentary
Debates, Official Report (28 Feb 200), “Debate on Annual Budget Statement)
o Religion is recognised and valued as a constructive social force which enriches the common good and
individual spirituality.
o “Religion is a good thing provided we are able to bridge the differences between our different faiths... [and]
make an extra effort to develop that trust and to work together which we have been doing.” (PM Lee Hsien
Loong, Time Interview, 23 July 2015)
Jurisdictional theory: Limited government (separation vs conflation of the sacred/temporal); some things are
necessarily outside the government’s jurisdiction
o E.g. Art 15(3)(a): “Every religious group has the right... to manage its own religious affairs”
Source of political authority in Singapore: Secular democracy
o “The government must claim ultimate political authority from the Constitution, and not from any divine or
ecclesiastical sanction” (MRHA White Paper, para 5)
o “In Singapore, the safeguards for political rights and democractic values must be secular, not religious
institutions. If... the government of the day acts contrary to the interests of the people.... It is the duty of the
opposition political parties and the electorate, not of any religious group, to overthrow a government which
has lost the mandate of the people...” (MRHA White Paper, para 21).
No specifically established religion (cf Malaysia, Saudi Arabia etc.)
o The government does not favour any particular religion, but instead seeks to treat all religions in an even-
handed fashion
o However - Colin Chan v PP (1993) 3 SLR(R) 209 at [53]: “Significantly, the Singapore Constitution does not
prohibit the ‘establishment’ of any religion.”
Note indigeneity clause which protects the “special position” of the Malays – Art 152(2)
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Shared space for manifesting group-based identities – Demand to be out of the state’s regulatory
ability to manifest group-based identities in common reach, establishment of “islands of jurisdiction”
spaces/public “Sphere sovereignty”
Autonomy
Describes Singapore’s approach? (*TO CHECK*)
o E.g. Art 152-153: Duty to care for ‘racial and
religious minorities’
o AMLA, religious courts, Islamic Religious Council,
Muslim Affairs Minister
o Halal certification (MUIS, s 88A AMLA) –
demonstrates that State is willing to take a more
proactive approach towards religion? Cf Philippines,
where halal certification is said to contravene the
constitutional principle of ‘separation of Church &
State’.
NB: The fact that even religious laws derive their legitimacy from secular laws (i.e. AMLA) is testament to secularism in
Singapore
Sovereignty, Democracy
Two aspects of sovereignty: External and internal sovereignty
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[45]: “To achieve these twin objectives, the Bill sought, first, to transfer some power from the
HDB to the MPs and grassroots leaders by giving the latter, and the residents, greater power and
responsibility to manage their own affairs and to participate in their estate’s development.”
[46]: “Secondly, it was perceived at that time that MPs had no direct responsibility for and
accountability to their constituencies. The Bill sought to increase the authority and responsibility
of MPs, thereby encouraging voters to vote more carefully and sincerely to choose honest and
effective MPs.”
Separation of powers
Separation of powers on 3 levels (Prof MJC Vile)
o Institution: To maintain political liberty, divide government into three branches: legislature, the executive and
the judiciary
o Function: Confine each government branch to the exercise of its own function; prevent encroachment into the
functions of the other branches.
o Personnel: To keep separate and distinct the persons composing the 3 agencies of government; no individual
to be allowed to be at the same time a member of more than one branch, so that no single group of people will
be able to control the machinery of the State.
Characteristics
o Non-justiciability and deference
Although courts are entrusted with judicial review powers, they will not touch political questions
which they are not competent to deal with
Lee Hsien Loong v Review Publishing Co [2007]: There are “clearly provinces of executive decision-
making that are, and should be, immune from judicial review.” (at [95]).
Case Tan Seet Eng (2015) SGCA 59
Rule/Remarks [91]: “The question of the appropriate measure of deference, respect, restraint, latitude or
discretionary area of judgment... which the courts should grant the primary decision-maker
under this head of review is one of the most complex in all of public law and goes to the heart of
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the principle of the separation of powers... there is often a fine line between assessment of the
merits of the decision (evaluation of fact and policy) and the assessment of whether the
principles of “just administrative action” have been met. The former questions are normally
matters for the primary decision-maker, but the latter are within the appropriate capacity of the
courts to decide.”
o Functional differentiation
Are mandatory sentences contrary to the separation of powers in that they effectively take away
judicial powers?
E.g. Minimum punishments: Mohd Faisal v PP
E.g. Death penalty: Nguyen Tuong Van v PP
o Polycentricity
Certain decisions involve polycentric considerations which courts are simply not equipped to deal
with. Examples of such matters:
National security (Tan Seet Eng)
Allocative decisions (Chiu Teng)
Issues of social morality (Lim Meng Suan v AG)
Case Tan Seet Eng (2015) SGCA 59
Rule/Remarks [93]: “[C]ourts and judges are not the best-equipped to scrutinise decisions which are laden with
issues of policy or security or which call for polycentric political considerations. Courts and
judges are concerned rather with justice and legality in the particular cases that come before
them.
[95]: “On matters concerning national security, our courts have traditionally accorded deference
to the Executive’s determination. Practically, this has meant that the courts have undertaken a
less intense standard of review.”
Application
[144]: “As stated above, the basis underlying s 377A’s existence is, in the final analysis, an issue
of morality and societal values. The views ventilated in Parliament during the October 2007
Parliamentary Debates and at the hearing of this case are without a doubt controversial and
disparate among various segments of our society. What is clear, however, is that Parliament has
decided that s 377A should be retained. That decision is not one which is undeniably wrong. Our
courts cannot substitute their own views for that of Parliament.”
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o Presumption of constitutionality
Where there is doubt regarding the normative desirability of a certain decision and there are many
contested views, the court is typically hesitant to make a decision and will typically only make
suggestions at best.
Case Lim Meng Suang v AG [2013] SGHC 73
Rule/Remarks [142]: “To my mind, defining moral issues need time to evolve and are best left to the Legislature
to resolve. Even the seminal case of Roe v Wade 410 US 113 (1973) has been doubted... [In that
case,] heavy-handed judicial intervention was difficult to justify and appears to have provoked,
not resolved, conflict.”
Rule of Law
A brief history: From Rex Lex to Lex Rex
o Henri Le Bracton, De Legibus et Consultulinibus Angliae: The King himself ought not to be subject to man but to
God and the Law, for the law makes the King.
o Samuel Rutherford, Lex Rex (1644): Demolished the doctrine of the “divine right of kings” (Rex Lex). Under Lex
Rex, rulers are subject to rules and are restrained by objective standards.
o Controversy #1: “Thick” (substantive) vs “Thin” (formal) conceptions of the rule of law
Increasing “thickness”
Arbitrary use of power Arbitrary use of Strict adherence to formal Similar to formal rule of law, but goes
No formal power, but there is rules/procedure further
procedures/ rules are nevertheless strict Law is capable of restraining The rule of law is seen as important
followed adherence to and guiding its subjects, because it promotes a substantive vision
procedure including the state, because it is of the good. However, since everyone’s
supreme (Raz) conception of the ‘good’ differs, it is an
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Thick conception of the rule of law Thin conception of the rule of law
Those who espouse substantive conceptions of the rule Formal conceptions of the rule of law do not seek to
of law accept that the rule of law has formal attributes pass judgment upon the actual content of the rule of
(see thin conception) but wish to take the doctrine law. Instead, they merely address the manner in which
further. the law was promulgated (i.e. was it by a properly
They believe that certain substantive rights (e.g. authorised person, in a properly authorised manner?)
political, moral and economic ideology, human rights) (Paul Craig)
are based on, or derived from the rule of law.
Dicey’s approach
Criticism The thin conception is regularly associated with AV
This conflates the rule of law with substantive justice. Dicey, who proposed the following “core” aspects of a
Clearly, the problem here is that everyone has different rule of law:
conceptions of what “justice” entails. o The absolute supremacy of regular law as
In avoiding the metaphysics of natural law/the natural opposed to the influence of arbitrary
rights theory, Dworkin located the community as the power/discretion
source of these rights. However, Tanahama has astutely o Equality before the law: All classes, including
pointed out that Dworkin’s approach “denies the govt., are to be subject to ordinary law
ultimately contestable nature of the disputes” as it administered by ordinary law courts
ignores the fact that “there is no uncontroversial way to There is also a host of other sub-rules, e.g. transparency,
determine what these rights entail” as basic rights to openness
equality, privacy and liberty are intensely contested
concepts. Joseph Raz’s approach (commended in Thio’s Treatise, p. 172)
Since everyone has different conceptions of substantive Raz submits that the most important aspect of the Rule
justice, the rule of law then problematically becomes an of Law is that it must be capable of guiding the
“empty container” into which any favoured philosophy behaviour of its subjects.
may be poured” – i.e. definition so all-encompassing as The formal rule of law is “indifferent towards the
to be virtually useless (Thio’s Treatise, p. 169). substantive aims of the law and is ready to serve a
variety of such aims with equal efficiency.”
It is just one virtue of a legal system and is not to be
confused with democracy, justice, equality or human
rights of any kind
Criticism
Potential use of legal system to suppress enemies in the
name of “security” instead of protecting rights
(controversy over ISA as a tool to defeat political
enemies?)
Need to distinguish from ‘rule by law’, or bare legality,
which means following stipulated procedural safeguards
without regard to the quality of the law, which means
that law may be reduced to a tool of government
repression.
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“If the government had failed to establish the basics for political stability and social cohesion, the Rule of Law would have
become an empty slogan in a broken-backed Singapore. But we have succeeded, and the Rule of law today in Singapore is
no cliché.” (PM Lee, 1990)
Note that the CA in Chng Suan Tze v MHA [1988] and the HC in Teo Soh Lung v MHA articulated different
understandings of the ‘rule of law’.
o Chng Suan Tze v MHA: “All power has legal limits and the rule of law demands that courts should be able to
examine the exercise of this discretionary power.” Executive only has power to act in accordance to ROL – courts
can arrest in case of Ultra Vires. Based on this view, the rule of law is seen as a principle of limited government,
and the judiciary is seen as a check on the power of other state organs. Formal adherence to rules is seen as a
means to ensure that power is kept under restraint. While this approach may still be classified under the “thin”
conception of the rule of law, it is “thicker” than the approach in Teo Soh Lung in that it makes reference to some
substantive principle – viz., that of limited government.
o Teo Soh Lung v MHA: Under the ISA, it is for the executive to act upon its own discretion to decide which activities
are prejudicial to national security. This does not constitute an abrogation/violation of judicial power. This
demonstrates a more formalistic (“thinner”) approach to the rule of law. The content of the rule does not matter
– formal adherence to the rule itself is sufficient. Legal clawback. Can also be read as in line w ROL – judiciary vs
Legislative
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override or set aside the laws created by Parliament. Parliamentary supremacy exists in the United Kingdom, where the
Constitution is unwritten.
Constitutional Supremacy
What does it mean to say the Constitution is supreme?
Since the state derives its existence from the constitution, every law and every power – executive, legislative or judicial –
is subordinate to and controlled by the constitution (Dicey). This is similar to the judicial understanding espoused in Lo
Pui Sang: “This is what constitutional supremacy means: If the Legislature and the Executive must follow it, so must the
Court. Everyone obeys it.”
Since Singapore never had a constituent assembly, what makes the Singapore Constitution supreme?
(NB: Look at Thio’s Treatise – does it expound on the arguments below?)
1. Supremacy clause (Art 4)
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a. Essentially, the Constitution confers supremacy on itself through Article 4, which provides that a
consequence of the supremacy of the Constitution, all laws which are inconsistent with the Constitution are
simply void.
b. This may seem like a circular argument, but it is simply a positivist approach to the problem.
2. Normative theory: Natural law
a. Stems from the idea that the monarch is not absolute and does not hold indivisible power. Instead, the
state is merely an agent/servant of the people: Ultimate authority vests in the people themselves
(consistent with the idea of popular sovereignty).
3. Logical priority
a. If the legislature, which is the fountain of all laws, is legitimated by the Constitution, then it necessarily
follows that the Constitution must be supreme.
4. Sociological acceptance
a. In the case of Singapore, we never had a Constituent Assembly, so resort to history does not really help us.
b. The cure for this original historical “defect” is sociological acceptance. Since we all accept that the
Constitution is supreme as a social fact, then it necessarily follows that the Constitution must be supreme.
5. Moral necessity (Wheare’s argument)
a. The Constitution is supreme because its supremacy is necessary to avoid anarchy and social chaos.
b. KC Wheare, Modern Constitutions: “A Constitution cannot be disobeyed with the same degree of
lightheartedness as a Dog Act. It lies at the basis of political order; if it is brought into contempt, disorder
and chaos may soon follow.”
6. International law
a. Didn’t catch this part
Rights
3 different criteria
Supremacy clause (Art 4, Art 162)
Amendment procedure
Review Mechanism (Art 9, Art 149)
Supremacy of Constitution
4. 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.
Existing laws
162. Subject to this Article, all existing laws shall continue in force on and after the commencement of this Constitution and all
laws which have not been brought into force by the date of the commencement of this Constitution may, subject as aforesaid,
be brought into force on or after its commencement, but all such laws shall, subject to this Article, be construed as from the
commencement of this Constitution with such modifications, adaptations, qualifications and exceptions as may be necessary
to bring them into conformity with this Constitution.
Transitional provision
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Laws which are inconsistent with the constitution must be construed in conformity with the Constitution
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Judicial review
o The judiciary is capable of striking down unconstitutional acts: Taw Cheng Kong v PP (1998) SGCA 37 [89]: “The
courts…will no doubt readily invalidate laws that derogate from the Constitution which is the supreme law of
our land.”
Art 93
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Constitutional Tribunal
o E.g. Tribunal was asked to determine a question regarding the President’s powers in Const Ref. No. 1 of 1995
[1995] 2 SLR 201
Art 100
Advisory opinion
100.—(1) The President may refer to a tribunal consisting of not less than 3 Judges of the Supreme Court for its opinion any
question as to the effect of any provision of this Constitution which has arisen or appears to him likely to arise.
Non-judicial Review
o Cf UK, where elected officials have the final say and are removable by ballot box
Art 77
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“It seems to me that reading the Preamble, the fundamental importance of the freedom of the
individual, indeed its inalienability, and the importance of the economic, social and political
justice mentioned in the Preamble, the importance of the directive principles... an irresistible
conclusion emerges that it was not the intention to use the word ‘amendment’ in the widest
sense.”
“I am driven to the conclusion that the expression ‘amendment of the Constitution’... means any
addition or change in any of the provisions of the Constitution within the broad contours of the
Preamble and the Constitution to carry out the objectives in the Preamble and the Directive
Principles. Applied to fundamental rights, it would mean that while the fundamental rights
cannot be abrogated reasonable abridgments of fundamental rights can be effected in the public
interest.”
o The “Basic Features” doctrine is essentially a model of interpretation – Sikri J used the
Preamble and the Directive Principles to “read down” Art 368 (Indian equivalent of Art
5(2) in Singapore Constitution)
“Every provision of the Constitution can be amended provided in the result the basic foundation
and structure of the Constitution remains the same. The basic structure may be said to consist
of the following features:
o Supremacy of the Constitution
o Republican and Democratic form of government
o Secular character of the Constitution
o Separation of powers between the legislature, the executive and the judiciary
o Federal character of the Constitution
The above structure is built on the dignity and freedom of the individual. This is of supreme
importance. This cannot by any form of amendment be destroyed.”
Application to Malaysia
o Traditional view: Not applicable
Case Loh Kooi Choon v Government of Malaysia (1977) 2 MLJ 187
Facts The appellant had been arrested and detained under a warrant issued under the provisions of the
Restricted Residence Enactment.
The appellant had not been produced before a Magistrate within twenty-four hours of his arrest.
He claimed damages but it was held that no action could be brought against the police officer as
he was acting in compliance with a warrant issued by a competent authority.
The appellant appealed but before the appeal was heard the Federal Constitution was amended
by Act A354/76 which provided in effect that Article 5(4) of the Constitution shall not apply to the
arrest or detention of any person under the existing law relating to restricted residence and that
this amendment shall have effect from Merdeka Day.
It was argued that the amendment was unconstitutional.
Rule/Remarks “I do not feel that the issue before this court would call for my view on whether there are indeed
inherent or implied limitations to the power of amendment under Article 159, and must perforce
confine myself to the issue before us viz. is the amendment to the fundamental right set out in
Article 5 by Act A354/76 constitutional?” (i.e. strictly obiter dicta?)
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No preamble: “The power to amend would not, in this country, be restricted by anything set out
in a Preamble for there is no Preamble to our Constitution.
If Parliament intended a limit, it would have introduced it: “It seems to me to be clear that if
there is to be any restriction to the right to amend any of the fundamental rights set out in Part
II, such restriction would have been set out in one of the various clauses of Article 159 itself.”
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Rule/Remarks [8]: “[I]t is clear from the way in which the Federal Constitution is constructed there are certain
features that constitute its basic fabric. Unless sanctioned by the Constitution itself, any
statute (including one amending the Constitution) that offends the basic structure may be
struck down as unconstitutional. Whether a particular feature is part of the basic structure must
be worked out on a case by case basis. Suffice to say that the rights guaranteed by Part II which
are enforceable in the courts form part of the basic structure of the Federal Constitution.
See Keshavananda Bharati v State of Kerala AIR 1973 SC 1461.”
Criticism #1: Prof Thio submits that this is one instance where the judge simply made an
assertion (i.e. that there are basic features of the Federal Constitution) but failed to support it
with reasoning.
Criticism #2: The reference to the need for sanctioning by the Constitution (“unless sanctioned
by the Constitution itself”) suggests that the Constitution itself is still the ultimate authority on
the validity of constitutional amendments (i.e. that there is no ‘higher law’ than the
Constitution). However, the fact that the judge quoted Kesavananda suggests that the court was
willing to adopt the “Basic Features” doctrine as applied in India. Essentially, it is unclear what
the judge intended by this confusing statement.
Application to Singapore
o “Basic Features” doctrine is inapplicable
Case Teo Soh Lung v MHA [1989] 1 SLR (R) 461
Essentially endorsed Ray J’s dissenting judgment in Kesavananda
Facts In 1987, the appellant, Teo Soh Lung, was detained under the Internal Security Act (ISA) for her
alleged involvement “in a Marxist conspiracy to subvert and destabilise the country to establish a
Marxist state”.
She successfully applied for habeas corpus but was subsequently rearrested.
In January 1989, Parliament passed the Constitution of the Republic of Singapore (Amendment)
Act and the Internal Security (Amendment) Act which amended s 8 of the ISA. They came into
operation respectively on 26 and 28 January 1989.
Two issues:
o First, whether the purported amendments to the Constitution and the ISA had the
effect of depriving the applicant of her right to effective judicial review of the legality,
rationality and constitutionality of her detention under the ISA.
o Second, if so, whether the amendments contravened the Constitution such that they
were void.
Rule/Remarks #Argument 1: If Parliament had intended to impose limits, they would have been expressly provided
for
[34]: “If the framers of the Singapore Constitution had intended limitations on the power of
amendment, they would have expressly provided for such limitations. But Art 5 of the
Constitution does not put any limitation on the amending power.”
o [35]: “If the courts have the power to impose limitation on the legislature’s power of
constitutional amendments, they would be usurping Parliament’s legislative
function.”
Quoting Lord Diplock in Hinds at [37]: “[T]he constitution provides machinery whereby any of its
provisions, whether relating to fundamental rights and freedoms or to the structure of government
and the allocation to its various organs of legislative, executive or judicial powers, may be altered by
those peoples through their elected representatives in the Parliament acting by specified majorities,
which is generally all that is required, though exceptionally as respects some provisions the
alteration may be subject also to confirmation by a direct vote of the majority of the peoples
themselves.”
Quoting Loh Kooi Choon at [38]: “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.”
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NB – [47]: “In any case, in my judgment, none of the amendments complained of has destroyed the basic
structure of the Constitution. Mr Lester in the course of his argument enumerated the manner in which, in
his submission, Parliament has violated the basic structure of the Constitution. However, I am of the view,
that they do not violate the basic structure of the Constitution.”
o But new doctrine: “Basic Structure” model? What is this and how is it different from “Basic Features”, if at all?
Case Mohd Faizal bin Sabtu v PP [2012] 4 SLR 947 at [11]-[15]
Facts Mr Mohammad Faizalbin Sabtu challenged the constitutionality of ss 33A(1)(a), 33A(1)(d) and
33A(1)(e) of the Misuse of Drugs Act.
The said subsections essentially provide for enhanced punishment for persons who had
previously been admitted to an approved Drug Rehabilitation Centre (“DRC”), previously
convicted of consumption of a specified drug, or previously convicted for an offence of failure to
provide a urine specimen.
Issue: Did the impugned s 33A MDA provisions constitute an impermissible legislative intrusion
into the judicial power and accordingly violate the principle of separation of powers embodied in
the Constitution of the Republic of Singapore?
Rule/Remarks [11]: “The Singapore Constitution is based on the Westminster model of constitutional
government (“the Westminster model”), under which the sovereign power of the State is
distributed among three organs of state, viz, the Legislature, the Executive and the
Judiciary...The principle of separation of powers, whether conceived as a sharing or a division of
sovereign power between these three organs of state, is therefore part of the basic structure of
the Singapore Constitution.”
o “Article 38 of the Singapore Constitution vests the legislative power of Singapore in the
Legislature consisting of the President and Parliament. Article 23(1) of the Singapore
Constitution vests the executive power (or authority) of Singapore in the President,
which power is “exercisable subject to the provisions of this Constitution by him or by
the Cabinet or any Minister authorised by the Cabinet”. Article 93 of the Singapore
Constitution vests the judicial power of Singapore in “a Supreme Court and in such
subordinate courts as may be provided by any written law for the time being in force”.”
[15]: “It should be noted that Art 4 of the Singapore Constitution states that any law inconsistent
with “this Constitution” (i.e. includes implied terms), as opposed to any law inconsistent with
“any provision of this Constitution” (i.e. express terms only), is void. The specific form of words
used in Art 4 reinforces the principle that the Singapore parliament may not enact a law, and the
Singapore government may not do an act, which is inconsistent with the principle of
separation of powers to the extent to which that principle is embodied in the Singapore
Constitution.”
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CAUTION: Do not confuse the “basic structure” doctrine with “implication”. Implying something
into the constitution does not automatically mean that it is part of the Constitution’s basic
structure. While implication is a method, “basic structure” is a theory.
Deriving content of basic structure through structural ‘Westminster model’ argument (similar to Mohd
Faisal above)
Cited Mohd Faisal and the argument in that case, i.e. that the doctrine of separation of powers
was a fundamental structural aspect of all Westminster models.
[70]: “ Likewise, in Vellama d/o Marie Muthu v AG [2013] 4 SLR 1, we located the philosophical
underpinnings of the right to vote in the Westminster model of government set up by the
Constitution.”
[71]: “[I]n order for a feature to be considered part of the basic structure of the Constitution, it
must be something fundamental and essential to the political system that is established
thereunder.”
Criticism of this argument: See Mohd Faisal
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