Public Law Assignment 2006

This essay cost me an A in Constitutional Law but I quite like it and it saves me from having to think of something to blog about. The citations have been omitted but the most important articles have been put in the essay itself.

If nothing else, this acts as a decent primer on Constitutional Developments since Independence. So enjoy.

Constitutional Amendments since 1966: Whither withered effects on Constitutionalism, Limited Government and Representative Democracy


I. INTRODUCTION


In the intervening period between the original Wee Chong Jin Constitutional Commission ("Commission") with its subsequent report ("report") and now, Singapore has come a very long way particularly with regards to its economic growth as well as subsequent social, political and constitutional developments.

The terms of reference of the Commission reflect what was felt to be the urgent problems that Singapore faced in the latter half of the 1960s. But despite the differing socio-economic-political climate, the assumptions and solutions advocated by the report have an as strong a force today, in its advocacy of a non-racial approach with a strong emphasis on protection of the individual's fundamental liberties as the best way to preserve multi-racialism and also formal institutional checks on the government.

This paper will be looking at Constitutionalism from the viewpoint of constitutional supremacy and the type of constitution that the Constitution of the Republic of Singapore (“Constitution”) purports to be and its reality. In the area of limited government, this paper will focus on the mechanisms of constitutionalism that limit governmental power e.g. rule of law, separation of powers, institutional and political checks and balances.



II. CONSTITUTIONALISM: SUPREME OR SIMPLY THE SUPREMES?


The issue of constitutionalism revolves around the notion of constitutional supremacy. Article 4 of the Constitution states clearly its supremacy. And any law that is inconsistent with it, is to the extent to which it is inconsistent, void.

So the issue then becomes how easily is the Constitution amended and how often it is amended. There have been 2 major constitutional amendments in this respect, firstly, the restoration of the super majority of 2/3 amongst parliamentarians to amend any aspect of the constitution itself, and the subsequent additions of articles 5A and 5(2A). The first has the effect of making our Constitution a controlled one i.e. it requires something more than a bare majority to amend. That was a positive development for it clearly delineates how the Constitution is a superior law to ordinary legislation i.e. requiring more than a bare majority to amend. The second set of amendments would force any amendments to the stipulated constitutional articles, to also be subject to a 2/3-referendum passage. This strikes an apparent balance between flexibility and rigidity of the Constitution that the Commission captured well when they expressed the opinion that:

We are aware of the adage that a Constitution that will not bend will sooner or later be broken. We are also aware that a Constitution that is too flexible may well turn out to be worse than having no Constitution at all.

However, it must be noted that not only are the entrenching provisions not in force, but they are subject to the discretion of the President, whether to require a referendum. Additionally, amongst all the branches of government, the judiciary is not amongst those entrenched under the provisions. This has disturbing implications as to its role as a check and balance on government. Even so, since this is now a matter of when they would come in force rather than whether they ever will, it should be acknowledged as a positive development to Constitutionalism and applauded.

While the Constitution may be controlled, it is very flexible. The near absolute monopoly the People’s Action Party (PAP) has in parliament, together with its use of the party whip, ensures that any Constitutional amendment would automatically be passed. Furthermore, the Constitution's remarkably flexible can be observed through the great number of amendments made since our independence, in particular the ease in which the EP scheme was passed. Despite being a major amendment to the Westminster system we operated on, there was a refusal to allow submission of the scheme to a referendum. But that the government chooses to amend the Constitution does go towards showing the acknowledgment that it is legally supreme.



III. LIMITED GOVERNMENT: THE LIMIT ON LIMITS


Any study of “limited government” will need to examine how governmental power is theoretically limited with its concurrent reality. From the above analysis on Constitutionalism, it is clear that the Constitution is at best a weak restrain on power. For a number of reasons examined below, the dominance of the party is such that recourse to the ballot box insofar as it provides for an alternative government (and thus a removal of a bad government) is currently not serviceable as an external political check.

Thus we have to turn to internal political checks and balances with the most significant Constitutional amendment to this area being the introduction of the Elected President (EP) scheme in 1990. While the scheme might have been originally promising, subsequent developments have created a relatively much diminished institution.

This development’s significant is its furthering of the doctrine of the separation of powers. Being a Westminster System, Singapore does not have a 'pure' separation of powers. Instead we have a fusion of personnel because the cabinet is drawn from parliament. With the introduction of the EP, who may not be a member of any political party, we now (ostensibly) have a formal check and balance against the Legislature/Executive.

While the pre-EP's powers were almost exclusively ceremonial, in contrast, the EP's role is by far more custodial and was envisaged to be a check on a free-spending, rash and irresponsible government out to drain the nation's hard earned reserves through populist measures. In addition, he too was to be the safeguard of our fundamental liberties, protect the integrity of the civil service, and be a force of anti-corruption.

However, subsequent constitutional amendments and clarifications have diminished his powers. The most significant is probably the introduction of article 151A, which ousters the President's ability to disapprove of any defence or security measure at his discretion. Furthermore, the determination of what constitutes a defence or security measure resides solely in the purview of the executive thereby diminishing the President's ability to be a financial guardian in this respect. In addition, the greater fear would be that a fiscally irresponsible government, which the EP is meant to check, would be able to use this article as a loophole.

Similarly, articles 22B(9) and 22D(9) curtails the EP by removing his oversight of the transfer of reserves and placing that in the hands of the Executive (minister) or political appointees (statutory board chairperson, CEO and various directors). Furthermore, it appears that the power of the EP to act as a restraint on cabinet’s power would tend to be construed narrowly, as was the case of article 144. And while this was not a constitutional amendment per se, it lends credence to the general notion that power ultimately resides in the Executive/Legislature and greatly circumscribes the concept of limited government.

It would have been a positive development if the White Paper on past reserves, been instituted into the Constitution. However, it remains a convention, which though ‘binding’ on future governments and EPs, has an “easy escape clause” in that any party simply needs to notify the other party that it does not wish to abide by the principles enunciated.

But where the EP has the most potential to act as a check on the government is to be found in articles 5 and 5(2A). However, this is only a potential power as these articles are still not in force after over a decade and a half. Furthermore, the amendment of art 22H, which was referred to the Constitutional Tribunal and achieved, now establishes as long as article 5(2A) is not in force, the President only has the power to withhold his assent to (non-constitutional) bills that would circumvent or curtail his discretionary power. It is recommended that these articles be instituted to give the EP his full powers and to strengthen Constitutionalism and Limited Government.

Turning to non-political checks and balances, we observe through the Parliamentary Debates on the rule of law (Lex Rex), that there are two competing (though not mutually exclusive) concept i.e. Natural Justice i.e. procedural fairness and Substantive Justice. Closely correlated with its capability to restraint government is the notion of judicial review and subsequently that of an independent judiciary. For the judiciary must be able to examine and strike down laws that are inconsistent with the Constitution and hence void.

It is in this context that a focus on our fundamental liberties serves as a bulwark against an arbitrary and autocratic government whether it exerts a tyranny of the majority or of a minority. An independent judiciary capable and willing not only to examine the Executive's decision but to also act as the guardian of our fundamental liberties, best serves such a system.

Prior to 1989, the judiciary had been willing and able to take a robust interventionist stance i.e. taking an objective test to and looking behind the decisions of the executive as part of judicial review. Wee Chong Jin CJ said: "the notion of a subjective or unfettered discretion is contrary to the rule of law. All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power."

This was subsequently overturned in 1989 with an amendment to "restore the law on judicial review" i.e. back to the subjective test. At the same time, appeals to the Privy Council were limited i.e. abolished "in respect of judicial review of decisions under the ISA, of interpretation of the ISA and interpretation of any provisions in the Constitution relating to subversion and emergency powers contained in Part XII of the Constitution." The result is that at least in matters of national security pursuant to article 149, there is really no limit to governmental power or discretion beyond that of the ballot box.

And similarly, while it is heartening and gratifying that the courts have asserted the right of any individual qua citizen to bring a suit alleging a legislation to be inconsistent with the Constitution, nevertheless, the approach adopted has been more akin to a "bathroom scales" than a "balancing" one. Thus, as long as any of our fundamental liberties clashes with national security, it is axiomatic that national security will prevail absolutely.

Such approaches see Parliament as the principal guardian of our fundamental liberties. However, this does not derogate from the necessity of having the recommended formal institutional checks and balances on government.



IV. REPRESENTATIVE DEMOCRACY: WHO REPRESENTS WHOM FOR WHAT?


Representative Democracy refers to “a limited and indirect form of democracy based upon the selection (usually by election) of those who will rule on behalf of the people”. The practice in Singapore is that of parliamentary democracy where the emphasis is that on deliberation through an adversarial ‘loyal opposition’ which is capable of forming an alternative government i.e. political pluralism and plurality of views.

A. G(reat) R(acial) C(ommitment)s?

In general, it can be said that the constitutional amendments made to this area have had a positive effect in the short run but a detrimental in the long term, based upon a cost-benefit analysis (CBA). Firstly, the GRC system, both in its original intent as well as the subsequent enlargements in 1994 and 1996, have had the effect of undermining the notion of one person one vote. As a result, people are selecting on the basis of teams, which prima facie limits the choice of the electorate to “cherry-pick” individual candidates. Furthermore, there is no necessity to have by-elections in the event one of the team members is unable to execute his duty, as an MP as was the case in 1999, where the reason given by then PM Goh was the need to focus on economic recovery.

The GRC scheme also works against parliamentary democracy by effectively eliminating opposition parties as a possible alternative government. This has as much to do with the strength and track-record of the PAP as it does the weakness of the opposition, which is simply not capable of fielding enough viable candidates to contest a true general election while adopting the election tactic of simply allowing the PAP to form the government and offer themselves up as alternative voices in government. Additionally, by prolonging the period the opposition is not in government, this hurts their credibility as a viable opposition.

These detrimental effects are partially offset by the fact that the GRC system was originally conceived and continues to ensure minority (non-Chinese) representation in parliament in a bid to maintain the necessary multi-racialism. This thereby ensures true popular representation in parliament thereby bolstering parliamentary democracy. Unfortunately, the subsequent enlargements of the GRCs to 4 and then 6 member teams in 1991 and 1996 respectively, have reduced the total number of guaranteed minority parliamentarians.

One may well applaud the intent, however, it does presume and perpetuate a very stratified notion of race and race relations, with possible detrimental effects in the long run. The is so given that the “non-racial” approach advocated by the original commission, the reasons for which still has force today, coupled with over half a century's worth of Religious Harmony Days and constant “National Education” to drum the importance of harmony. But if one accepts the premise of the necessity of minorities representing minority views, then in the modern context, the most woefully underrepresented segment of society has to be Women. If so, the GRC system ought to be adapted to ensure female political participation.

B. The non-elected, not-quite-elected, and not-so-elected

Any evaluation of the Non-Constituent Member of Parliament (NCMP), and Nominated Member of Parliament (NMP) scheme, must be done via a CBA taking into account Singapore's context. So while on the one hand, such members, not being elected or having a popular mandate should be considered to be undermining Representative Democracy, at the same time, these MPs may well be representing the protest voters or the voters who did not vote for the PAP in the elections.

But the great uneasiness over these schemes can observed via the NMP scheme being subject to a "sunset clause", while the number of NCMPs are limited constitutionally. Particularly so when seen in light of the PAP’s approval of NMPs apolitical nature and presenting of non-partisan 'opposition' views in Parliament with their subsequent expansion in 1997 and 2001. There is nevertheless much force in the critiques levered against the concept of the NMP scheme, ranging as far back as the Randel Commission, and to the parliamentary debates.

However, these schemes were conceived that they would be able to provide an alternative viewpoint in parliament. Thus, while acknowledging the so-called ‘Opposition Gap’ i.e. the lack of opposition members providing opposing viewpoints in Parliament and the necessity of improving the quality of debate, nevertheless a question is raised as to whether this erodes representative or parliamentary democracy in the long run by “co-opting” the best and removing the impetus for an opposition/alternative government.

There is also the further downside of non-elected bodies sharing executive/legislative powers. For example, the provisions for the EP ensures that he has to share power not only with the cabinet but also non-elected bodies like the Council of Presidential Advisors, and Presidential Elections Committee, thereby entrenching them in the Constitution and undermining the concept of representative democracy in our parliamentary system. Similar to this is the Presidential Council for Minority Rights, which bears some similarities to the Council of State envisioned in the report in protecting minority rights. Unfortunately for parliamentary democracy, not only is this a far more limited version of the council originally proposed, but even on the protection of minorities front, it has yet to raise any adverse reports despite the prima facie "differentiating measure" inherent in many of the above-mentioned constitutional amendments.



V. CONCLUSION


The constitutional amendments have constituted a mixed blessing for the three specific objectives evaluated. However, even those can be said on balance to further these objectives, only achieve this in the short run will questionable to detrimental effects in the long term. We would do well to adopt the general advice of the Commission to focus on protecting the individual's fundamental liberties through strengthened and independent institutional checks and balances.