Separation of powers in Singapore

Within the executive, the elected president adds to the overall scheme of checks and balances through his discretionary power to block certain government actions.

This aspect of constitutionalism is "concerned with curbing oppressive government and preserving individual freedom while retaining a realm for the exercise of legitimate governmental power".

However, where each branch wields more power than it legitimately should, there is room for abuse, leaving the rest of the society open to the potential of being ruled by tyranny of the majority.

With the various branches of government being responsible for specific functions, people are more inclined to vote into Parliament (which will form part of the legislature) persons who will best represent their views.

[14] The origins of the separation of powers in Singapore lie in the Westminster constitutional model inherited from the United Kingdom during its colonial past, first as part of the Straits Settlements, and then as an independent nation.

[34] One associated problem is that of an "elective dictatorship" – Quintin Hogg, Baron Hailsham of St Marylebone, once described it as the dominance of the executive over a subservient Parliament.

According to this doctrine, Parliament imposes a check on the Cabinet by scrutinising government bills and actions, and calling upon ministers to justify policies before the House in open debate.

This principle also seeks to enhance inter-ministry co-ordination by ensuring that all ministers share the same broad policy positions, and that there is no "unnecessary duplication or, worse, mutual contradiction".

[40] Marking a departure from the Westminster model, the NCMP scheme was conceived to introduce alternative political voices in Parliament.

[42] Some commentators have remarked that the NCMP scheme is premised on the assumption that the one party-dominance will continue to govern Singapore's political state of affairs.

[45] Unlike NCMPs, NMPs are intended to be apolitical voices in Parliament – the purpose of the NCMP scheme is to have MPs hailing from various fields and professions who can "reflect as wide a range of independent and non-partisan views as possible".

[46] Though NMPs may in effect be insignificant as a check on the executive, they can present alternative viewpoints which the Government may consider and even choose to respond to, particularly where they concern socially significant issues.

As NMP Paulin Tay Straughan has said: "The day when we move into a two-party system where opposing voices are more visible, we will not need NMPs or NCMPs anymore.

[50] Appointments of judges and Judicial Commissioners (JCs) of the Supreme Court are made by the President, when, in his discretion, he concurs with the Prime Minister's advice on the matter.

[62] The President appoints State Courts judges from among the members of the Legal Service on the recommendation of the Chief Justice, who is also the chairman of the LSC.

Members of the subordinate judiciary can be transferred out of the courts to the Attorney-General's Chambers or to some other government department to serve as legal officers.

[69] The case of Senior District Judge Michael Khoo being appointed as a deputy public prosecutor in August 1981 is often cited in this context.

B. Jeyaretnam, a prominent opposition MP, of certain charges of having fraudulently transferred cheques to prevent the distribution of money to the creditors of the Workers' Party of Singapore, and of making a false declaration.

[70] However, it has also been said that observations about the apparent connections between the executive and judiciary are merely theoretical, and that for a more accurate analysis of the separation of powers in Singapore the "[j]udiciary must be judged on its performance in the context of actual litigation".

"[73] The Supreme Court also exercises supervisory jurisdiction over inferior tribunals and public authorities, and can hold that acts and decisions by them which infringe administrative law rules are invalid.

For example, in Chng Suan Tze v. Minister for Home Affairs (1988),[75] the Court of Appeal adopted an objective test for reviewing ministerial discretion in the issuance of preventive detention orders under the Internal Security Act ("ISA").

[76] However, within a month of the decision, Parliament amended the Constitution and the Internal Security Act[77] to reinstate the subjective test espoused in Lee Mau Seng v. Minister for Home Affairs (1971).

Secondly, it may thwart the perception that the judiciary is a co-equal institution in the scheme of the separation of powers, thus causing a loss of respect and public confidence in the system.

[79] Speaking in Parliament during the Second Reading of the bill amending the Constitution to reverse the effect of Chng Suan Tze, the Minister for Law S. Jayakumar quoted Lord Diplock to justify this truncation of judicial review on the basis that national security is "the responsibility of the executive government", and it is a non-justiciable question which "the judicial process is totally inept to deal with".

[82] However, it remains an open question whether ouster clauses are fully effective or whether, as the House of Lords held in Anisminic Ltd. v. Foreign Compensation Commission (1968),[83] they do not apply to the acts and decisions of public authorities that are a nullity.

[86] In matters pertaining to "high policy" such as treaty-making, national defence and foreign relations, the courts will generally decline judicial review of the exercise of power in deference to the executive.

[88] The court's decision to intervene or not is guided by the following four principles enunciated by Judicial Commissioner Sundaresh Menon in Lee Hsien Loong v. Review Publishing Co Ltd (2007):[89] However, areas of high policy such as national security do not automatically apply as a "plea in bar".

[94] The President has power to block attempts by the Government to draw down past reserves it did not accumulate, to approve changes to key appointments, and to exercise oversight over the Corrupt Practices Investigation Bureau and decisions of the executive under the ISA and the MRHA.

[98] To be an effective check, the President must be sufficiently independent and adequately empowered to change or at least block harmful or unsound government policies.

For instance, this mechanism applies if the President vetoes key civil service appointments[105] or withholds assent to bills that are likely to draw on the nation's past reserves.