2016 Global Review of Constitutional Law

are now called Single Member Constituencies,
where voters return one candidate to
Parliament, in a GRC, voters cast ballots for
teams of candidates. At least one member of
each team must be from a minority community.
Lastly, the office of the President was
transformed in 1991 from a purely ceremonial
head of state to an elected one with
some (but still limited) discretionary powers.
These discretionary powers include powers
to veto attempts by the Government to deplete
the nation’s past financial reserves;
and to veto unsuitable appointments or dismissals
of key public officers (e.g., judges,
the Attorney-General, the Chief of Defence
Force, and the Commissioner of Police). 7
Constitutional amendments taking effect in
2017 have, among other things, made the
qualifications for presidential candidates
more stringent and introduced the concept
of “reserved elections”, which are elections
reserved at first instance for candidates from
designated minority communities 8 – another
move to secure diversity in institutions of
governance (see further discussion below).
THE CONSTITUTION AND THE
COURTS
Singapore does not have a specialized constitutional
court. Like private law matters,
public law issues are dealt with primarily by
the High Court and Court of Appeal, respectively
the lower and upper divisions of the
Supreme Court, and to a much more limited
extent by the State Courts (the nation’s
subordinate courts). Cases are generally first
brought before the High Court by way of judicial
review, the available remedies being
prerogative orders (mandatory orders, prohibiting
orders, quashing orders, and orders
for the review of detention) and declarations.
A right of appeal lies from the High Court
to the Court of Appeal, the highest appellate
court. Judges are appointed to the Supreme
Court by the President with the advice of the
Prime Minister. 9 A number of constitutional
provisions and common law rules seek
to ensure the independence of the Supreme
Court. 10 For instance, judges hold office till
the age of 65, may only be removed from office
on proof of misbehaviour or inability to
properly discharge the functions of the office
that has been established by an independent
tribunal, may not have their remuneration
and other terms of office altered to their disadvantage,
and have immunity from lawsuits
in most situations.
Article 100 of the Constitution provides an
alternative procedure for constitutional issues
to be resolved. It provides that the President
may refer to a tribunal of at least three
Supreme Court judges “any question as to
the effect of any provision of this Constitution
which has arisen or appears to him likely
to arise”. 11 This is a fairly limited procedure
as the President lacks personal discretion to
refer constitutional questions to the tribunal
and is required to act on the Cabinet’s advice,
and it has been suggested by the Court
of Appeal that the procedure is only intended
for resolving disputes between constitutional
organs. However, the Tribunal’s findings do
not bind the Government. 12 The Article 100
procedure has only been used once since it
was introduced. 13
DEVELOPMENTS AND
CONTROVERSIES IN 2016
Separation of Powers
The doctrine of the separation of powers is a
cornerstone of Singapore’s constitutional arrangement.
While not specifically mentioned
in the Constitution, the existence of this constitutional
principle may be inferred from
the separate vesting of executive, legislative,
and judicial power. 14 The separation of powers
has also been judicially affirmed as “a
fundamental doctrine of the Constitution” 15
and as part of the Constitution’s basic structure.
16 It is therefore undisputed that the Constitution
is structured upon and incorporates
the doctrine of the separation of powers.
The proper division and balance of power
among the different branches of government
remains a persistent issue in Singapore’s
constitutional law. Most cases thus far involve
the contentious issue of the proper
balance between judicial power and executive
power. This is complicated by the fact
that the cases often involve questions of the
“appropriate measure of deference, respect,
restraint, latitude or discretionary area of
judgment” that courts should give the Executive.
17 Indeed, the task of demarcating the
boundary between the judicial and executive
branches has been described as “one of the
most complex in all of public law and goes
to the heart of the principle of the separation
of powers”. 18
Courts have thus far tended to give due regard
to executive judgment in what they call
polycentric decisions. 19 For instance, national
7
Constitution, Pt XI, Arts 22, 22A and 22C.
8
Constitution, Art 19B.
9
Constitution, Art 95 read with Art 22(1)(a).
10
Constitution, Art 98.
11
Constitution, Art 100(1).
12
Tan Eng Hong v Attorney-General [2012] 4 SLR 476, [103].
13
Constitutional Reference No 1 of 1995 [1995] 1 SLR(R) 803.
14
Constitution, Arts 23, 38 and 93.
15
Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR(R) 239, [134] (Phyllis Neo).
16
Mohammad Faizal bin Sabtu v PP [2012] 4 SLR 947, [11]-[13] (Mohammad Faizal), most recently cited with approval in Prabagaran a/l Srivijayan v Public
Prosecutor [2017] 1 SLR 173 (CA) at 200, [56] (Prabagaran). See also Phyllis Neo (n. 15), [134].
17
Lord Woolf et al, De Smith’s Judicial Review (7th edn, Sweet & Maxwell, 2013), para 11-004.
18
Ibid.
19
Lee Hsien Loong v Review Publishing Co Ltd [2007] 2 SLR(R) 453, [98].
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