Constitution of Singapore

The Constitution also appears to satisfy Albert Venn Dicey's three criteria for supremacy: codification, rigidity, and the existence of judicial review by the courts.

Constitutionalism has been described as being "concerned with curbing oppressive government and preserving individual freedom while retaining a realm for the exercise of legitimate governmental power".

[11] Since Singapore was founded as a factory or trading post of the East India Company in 1819, a number of laws having constitutional status have applied to it.

Thereafter, a number of other legal instruments were issued to streamline the constitutional structure of the colony, but did not make significant changes to the arrangements put in place by the 1867 and 1877 letters patent.

This was effected by the Singapore (Constitution) Order in Council 1958,[17] which created the position of the Yang di-Pertuan Negara as the head of state, a prime minister and a wholly elected Legislative Assembly with 51 members.

In its report,[37] the Wee Commission made recommendations regarding two broad areas – political philosophy and principles, and various governmental institutions.

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.

[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fallen out of fashion at least in practice, as courts now regularly consider foreign cases which have only persuasive, not precedential value.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.

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.

[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.

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.

[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.

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.

[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.

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.

[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).

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.

[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.

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.

[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.

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.

[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.

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.

[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.

[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.

[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.

[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.