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The Singapore Law Gazette

Unwritten Constitutional Norms: Finding the Singapore Constitution

This article examines the judicial articulation of unwritten constitutional norms in Singapore over the last few years. It takes as its starting point that the constitution is underpinned by foundational norms and the articulation of such norms is important to understand the practice of constitutionalism in Singapore. Accordingly, I discuss three normative principles and examine how they have influenced judicial doctrine: the principle of legality, the idea of a constitutional identity, and the separation of powers. I also identify conceptual gaps that need to be addressed as well as examine how these principles could be developed further. The articulation and substantiation of these principles is crucial for the development of constitutional law in Singapore.

Introduction

In a 2010 lecture titled “Judicial Review: From Angst to Empathy”, then Chief Justice Chan Sek Keong lamented the “sense of unease” that he had observed among law students about “the dormant state of judicial review in Singapore”.1Chan Sek Keong, “Judicial Review – From Angst to Empathy” (2010) 22 SAcLJ 469. This appeared to have changed some five years later as in a speech made at the 2015 Opening of the Legal Year, then Attorney-General VK Rajah noted that there has been an “increase in civil litigation between the public and the state in administrative and constitutional law issues”, observing further that judicial review is “essential to the rule of law”.2VK Rajah, “The Rule of Law” (Speech at the Opening of the Legal Year 2015), edited excerpt from The Straits Times (Singapore, 7 January 2015) < https://www.agc.gov.sg/docs/default-source/speeches/2015/opening-of-legal-year-2015_attorney-general-v-k-rajah’s-speech_5-jan_checked-against-delivery.pdf?sfvrsn=2> accessed 21 September 2015. Along the same lines, in a 2016 speech on the rule of law, Chief Justice Sundaresh Menon affirmed that “[j]udicial review is the sharp edge that keeps government action within the form and substance of the law”.3Sundaresh Menon, “The Rule of Law: The Path to Exceptionalism” (2016) 28 SAcLJ 413 at (30).

Indeed, constitutional law, if it has been on the margins, has arguably moved closer to the mainstream of litigation subject-matters in recent years. Quantitative enquiries would show that there has been an increase in the number of cases involving constitutional law issues in the past decade.4See Jack Tsen-Ta Lee, “Foreign Precedents in Constitutional Adjudication by the Supreme Court of Singapore, 1963–2013” (2015) 24:2 Washington International Law Journal 253 at 260. Indeed, many of the cases discussed in this article were decided in the past decade. Qualitatively, judgements have also become longer, reflecting greater judicial engagement with the constitution as part of their reason-giving process. During this time, a crucial activity has taken place and this is the judicial articulation of unwritten constitutional norms. These norms are said to be foundational to our constitutional system and critical to how we understand constitutionalism in Singapore. In this article, I will discuss three normative principles and examine how they have influenced judicial doctrine: the principle of legality, the idea of a constitutional identity, and the separation of powers. I will also identify conceptual gaps that need to be addressed as well as examine how these principles could be developed further. It is my position that the articulation and substantiation of these principles would be crucial for the development of constitutional law in Singapore.

Principle of Legality

The principle of legality is a reflection as well as the substantiation of a view first articulated by the Singapore court in the landmark 1988 case of Chng Suan Tze v Minister of Home Affairs (hereafter Chng).5(1988) 2 SLR(R) 525. In this case, which concerned the legality of preventive detention order on national security grounds under the Internal Security Act (ISA), the Court of Appeal set out the now familiar passage:

In our view, 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.”6Ibid at (86).

This was a landmark case as it is the first time a court had ordered the release of persons detained under the ISA. In so doing, the Court overturned established precedent to hold that the ministerial discretion over ISA detentions is justiciable and subject to an objective standard of review.7Ibid at (88)-(92). Note however that the Court cautioned that where national security is implicated, the courts will subject the decision to less intense scrutiny. This departs from its earlier position which adopted a subjective standard of review, thus essentially giving the government almost absolute discretion over detention orders. Under the subjective standard, all that would be required is evidence that the detaining authority was subjectively satisfied that there were grounds for detention.8See Lee Mau Seng v Minister for Home Affairs (1971–1973) SLR(R) 135. Although the specific ratio of Chng concerning the standard of review was legislatively overruled, the normative proclamations in Chng have endured. Then Chief Justice Chan Sek Keong, who was part of the coram in Chng, affirmed as much in 2011 in the case of Yong Vui Kong v Attorney-General (hereafter,Yong (Clemency)),9(2011) 1 SLR 1189. when he stated that Parliament “left untouched the full amplitude of the Chng Suan Tze principle” and thereby “implicitly endorsed” them.10Ibid at (79). See also Lim Meng Suang and another v Attorney-General (2013) 3 SLR 118 at (112). The principle of legality was invoked in this case to justify subjecting the President’s power of clemency to judicial review; it is a legal power and therefore must be subject to legal limits. Indeed, invoking Chng, the Court of Appeal then held that in countries with a supreme constitution, “there will (or should) be few, if any, legal disputes between the State and the people from which the judicial power is excluded.”11(2011) 2 SLR 1189 at (31).

Thus, decisions by persons in high political office could be subject to judicial review as long as they were decisions with a legal basis, which arguably should almost always be the case in all constitutional systems. Accordingly, in the case of Vellama d/o Marie Muthu v Attorney-General (hereafter Vellama),12(2013) 4 SLR 1. the Court held that the Prime Minister’s discretion to call for by-elections to fill casual vacancies in a single-member constituency (SMC) is subject to judicial review. The Prime Minister’s decision is governed by Article 49 of the Constitution, which states that “[w]henever the seat of a Member … has become vacant for any reason other than a dissolution of Parliament, the vacancy shall be filled by election in the manner provided by or under any law relating to Parliamentary elections for the time in force.”13Emphasis added. Note that this issue focused on single member constituencies since section 24(2A) of the Parliamentary Elections Act (Cap 218, 2011 Rev Ed Sing) provides that no writ of election shall be issued to fill a GRC vacancy “unless all the Members for that constituency have vacated their seats.” The constitutionality of this provision is currently being challenged. See Wong Souk Yee v Attorney-General (2018) SGHC 80. The Court concluded that the Prime Minister does not have “unfettered14Vellama at (92). or “unconditional15Ibid at (87). discretion whether and when to call for an election,16Ibid at (92). but is constitutionally obliged to call for an election “within a reasonable time”.17Ibid at (92). Furthermore, even if the Prime Minister does not call for an election immediately to fill the vacancy, he has an obligation to “review the circumstances from time to time and call for election to fill the vacancy if and when the circumstances have changed.”18Ibid at (87). Invoking the principle of legality,19The other norm it invoked was Westminster constitutionalism. For further discussion, see Kevin YL Tan, “Into the Matrix: Interpreting the Westminster Model Constitution”, in Jaclyn L Neo, ed, Constitutional Interpretation in Singapore: Theory and Practice (Routledge, 2017) 50 (hereafter Kevin Tan, Into the Matrix). the Court held that this is because it is “a basic proposition of the rule of law that all discretionary power is subject to legal limits”.20Chng at (86).

This idea that the rule of law is the “bedrock” of Singaporean society and that it requires that power vested in state organs are subject to legal limits was also emphasised by the Court of Appeal in the seminal 2015 case of Tan Seet Eng v Attorney-General (hereafter Tan Seet Eng)21(2016) 1 SLR 779. where the court determined that the Minister’s decision to detain persons under the Criminal Law (Temporary) Provisions Act is subject to objective review by the courts.

Thus, the principle of legality has been key in justifying and expanding reviewability of statutory and constitutional executive powers. It should be seen as underlying a presumption of reviewability.22Jaclyn L Neo, “All Power Has Legal Limits: The Principle of Legality as a Constitutional Principle of Judicial Review” (2017) 29 SACLJ 667 (hereafter Neo, Principle of Legality). Indeed, if all powers have legal limits, it follows that the default position should be that the courts should have the power to review the exercise of such powers, as was emphasised in Yong Vui Kong (Clemency) (discussed above). The presumption could be rebutted if there are compelling countervailing interests such as national security. Conceptualising judicial review as the default, rather than the exception, shifts the burden of proof from the litigant to the government. It is in line with a global diffusion of the culture of justification which posits a link between legitimacy of power and the government’s capacity to justify its actions.23The presumption of constitutionality is premised on the culture of authority, whereby the legitimacy and legality of government action is based on the fact that the actor is authorised to act: Moshe Cohen-Eliya & Iddo Porat, “Proportionality and the Culture of Justification” (2011) 59:2 Am J Comp L 463, at 474-6. This accords with ideas of fairness since it is the government, rather than the litigant, who would have access to crucial information that could justify the government’s actions.

Nonetheless, despite judicial acceptance, there remains significant scope for developing a more robust understanding of the principle of legality. For instance, should the principle of legality ground an expansion of the standard and scope of review? Would it warrant a more robust application of judicial review? Is the continuing application of the usual administrative law standards of review adequate to vindicate the principle of legality, especially considering that these standards were developed in the context of a supreme parliament? Should the principle of legality, in asserting reviewability, work as a strong presumption against ouster clauses?24Neo, Principle of Legality, at (47). Furthermore, should the principle of legality, as I have argued, justify the courts applying only a weak presumption of constitutionality”?25Ibid.

Lastly, is there scope for the principle of legality to be developed more concretely as an interpretive rule of statutory construction such that statutes should be read consistently with notions of fairness and in favour of limiting discretionary powers?26See eg, Lim Teng Ee Joyce v Singapore Medical Council (2005) 3 SLR(R) 709.

Basic Structure of the Constitution and the Basic Structure Doctrine

Another crucial constitutional principle that has been developed is the idea that the constitution has a basic structure that could be judicially protected. First articulated by the Indian Supreme Court in the case of Kesavananda Bharati v State of Kerala27AIR 1973 SC 1461. in 1973, this doctrine has been considered and accepted over time in Singapore, albeit with some degree of ambiguity as to the extent of reception. The basic structure doctrine is a judge-made doctrine which holds that while the legislature has power to amend the constitution according to stated procedure, such power was subject to an implied limitation that any such amendment could not destroy the “basic structure” or “basic features” of the constitution. To say that the constitution has a “basic structure” suggests that one can identify its constitutional identity. In other words, the doctrine empowers judges to imply substantive limits on the power to amend the constitution. This has a potentially broad impact as the Constitution of Singapore does not explicitly state that any part of the constitution is unamendable. This is unlike, for instance, the German Constitution which explicitly includes eternity clauses.

When it first came up for consideration in the 1989 case of Teo Soh Lung v Minister for Home Affairs, the High Court declined to adopt the doctrine, holding that it was inappropriate considering Singapore’s constitutional drafting history.28Teo Soh Lung v Minister for Home Affairs (1989) 1 SLR(R) 461. While the Indian constitution was drafted by a constituent assembly (who have been called “demigods29See eg, Letter from Thomas Jefferson to John Adams, “Revolt of the Nobles” (Paris, 30 August 1787) on file at From Revolution to Reconstruction, online: <www.let.rug.nl/usa/P/tj3/writings/brf/jefl62>; Jaclyn L Neo, “Should constitutional principles be eternal?”, The Straits Times 6 October 2014), online: <https://www.straitstimes.com/opinion/should-constitutional-principles-be-eternal>.), the Singapore Constitution is a mishmash of provisions derived from different ‘constitutional’ documents. This position was further affirmed in Vincent Cheng v Minister for Home Affairs.30(1990) 1 SLR(R) 38. It is important to note this initial aversion to the basic structure doctrine to understand how significant is its current acceptance. The basic structure doctrine was clearly revived in the case of Mohammad Faizal bin Sabtu v Public Prosecutor (hereafter, Mohammad Faizal)31(2012) 4 SLR 947. when then Chief Justice Chan Sek Keong (sitting in the High Court) affirmatively stated that “the principle of separation of powers … is part of the basic structure of the Singapore Constitution”.32Ibid at (11). This was in response to the question of whether section 33A of the Misuse of Drugs Act was an impermissible legislative intrusion into judicial power, and a violation of the separation of powers. Since the phrase “separation of powers” does not appear in the text of the constitution, it must be implied as part of the foundational framework of the constitution.33(1967) AC 259.

The basic structure doctrine received further endorsement by the Court of Appeal in the 2015 case of Yong Vui Kong v Public Prosecutor (hereafter, Yong Vui Kong (Caning)).34(2015) 2 SLR 1129.Ibid at (72). In that case, the Court of Appeal did not reject the applicability of the basic structure doctrine to Singapore outright. After discussing Mohammad Faizal and even suggesting that the right to vote could be part of the basic structure of the constitution, the Court of Appeal nonetheless stated that the question of whether the Kesavananda doctrine is part of Singapore law and the extent of its application does not arise for the decision at hand and that the Court therefore “express no view on this.”35Ibid at (72). Even then, the Court of Appeal appeared accepting of the doctrine, even articulating a “test” for determining whether a feature is to be included as part of the basic structure of the Singapore constitution. It stated that such features must be “fundamental and essential to the political system that is established thereunder.”36Ibid at (71).

Further acceptance can be gleaned from the High Court case of Ravi s/o Madasamy v Attorney-General,37(2017) SGHC 163. which, unlike in Yong Vui Kong (Caning), involved a challenge to a constitutional amendment. The impugned provisions were the 2016 Constitutional Amendments introducing stricter eligibility criteria for candidates seeking to run for President and to introduce a framework of reserved elections. It was argued that these amendments violated the constitution’s basic structure as it interferes with the right to stand for public office and, more broadly, guarantees of equal protection under the constitution. While the High Court again declined to extend the basic structure doctrine as expressed in Kesavananda to the Singapore Constitution, it expounded upon the possible legal consequences to which a basic structure doctrine could give rise. The High Court proposed the idea of a “thin” basic structure doctrine and explored two possible legal doctrines.

The first sees the basic structure as requiring an interpretive principle that the constitution and any constitutional amendments should be interpreted, where possible, in a way that does not violate the basic structure. This would be akin to the principle of legality or the “clear statement rule” as understood in the United Kingdom and Australia, whereby courts assume that Parliament does not intend to infringe upon common law rights unless it employs clear words in the statute to do so.38See eg, Dan Meagher, “The Principle of Legality as Clear Statement Rule: Significance and Problems”, (2014) 36 Sydney L Rev 413. A second possibility is to narrow the scope of the basic structure doctrine, which would therefore only place “minimal constraints” on Parliament’s powers to amend the constitution. Kevin Tan has made a similar suggestion where he stated that only those features that are based on the structural matrix of the Westminster constitution are unamendable.39See Kevin Tan, Into the Matrix, 50. In other words, Parliament cannot amend the constitution in a way that destroys the Westminster form of government as being based on the separation of powers and a bill of rights.40Ibid. Rosalind Dixon and David Landau have similarly argued that the basic structure doctrine could be more specifically targeted at guarding against substantial threats to core democratic values.41Rosalind Dixon and David Landau, “Transnational constitutionalism and a limited doctrine of unconstitutional constitutional amendment” (2015) 13:3 ICON International Journal of Constitutional Law 606.

Going forward, I have argued that there are at least three interpretive issues to be addressed in implementing the basic structure doctrine.42Jaclyn L Neo, “Towards a ‘Thin’ Basic Structure Doctrine in Singapore” (17 January 2018), online: I.CONnect <http://www.iconnectblog.com/2018/1/towards-a-thin-basic-structure-doctrine-in-singapore-i-connect-column/>. The first is the prior question of how to identify what forms part of the basic structure. This issue is addressed to some extent by the Court of Appeal in Yong Vui Kong where it defined as part of the basic structure only those features that are “fundamental and essential to the political system”. However, it is not clear what evidence is required to show that a feature is fundamental and essential. In particular, is this to be judicially determined from first principles or would inter-branch consensus be required? Indeed, in suggesting that the right to vote, which is not found in the text of the Singapore Constitution, could be part of the basic structure, the Court of Appeal specifically referred to parliamentary debates, in addition to case precedent.43See Yong Vui Kong (Caning), at (69).

Secondly, there is a need to determine what standard of review is to be applied in determining compatibility of an amendment with a basic structure. Yaniv Roznai posits that there are at least three standards of review in descending degrees of stringency – minimal effect, disproportionate violation, and fundamental abandonment.44Yaniv Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (OUP, 2017) at 218-224. As such, even if the basic structure doctrine is adopted as a doctrine of unamendability, it may still have limited effect if the “fundamental abandonment” standard is adopted, whereby only an extraordinary infringement of a basic structure would result in judicial annulment of the amendment.

Thirdly, a basic structure doctrine has to strike a balance between protecting core constitutional principles and allowing legitimate institutional changes. For instance, the presidency was changed in 1991 from a ceremonial office, whereby the President was selected by Parliament, to an elected office with custodial powers over fiscal decisions and civil service appointments. The changes shifted the balance of powers within the government, with the President now having limited discretionary powers to check the Cabinet and Parliament.

As such, what is now well-established in Singapore is the legal fact of basic structure, but the exact content and scope of legal doctrine remains unclear. There are proponents for the adoption of the basic structure doctrine as a judicial doctrine of unamendability.45See eg, Calvin Liang & Sarah Shi, “The Constitution of Our Constitution: A Vindication of the Basic Structure Doctrine” Singapore Law Gazette (August 2014) 12, online: < http://v1.lawgazette.com.sg/2014-08/1104.htm>. Former Chief Justice Chan argues in a recent article that the basic structure doctrine is or should be applicable to the Singapore Constitution and, contrary to the claim that there is no constitutional moment grounding such a doctrine,46Former Chief Justice Chan was responding to Harding’s argument that there is no constitutional moment to ground the applicability of such a doctrine: Andrew Harding, “Does the ‘Basic Structure Doctrine’ Apply in Singapore’s Constitution? An Inquiry into Some Fundamental Constitutional Premises”, Jaclyn L Neo, ed, Constitutional Interpretation in Singapore: Theory and Practice (Routledge, 2016) 37. points out that there is a historical basis for it found in the 1963 Singapore Constitution. Moreover, he argues that the supremacy of the Singapore Constitution supports the applicability of the doctrine.47Chan Sek Keong, “Basic Structure and Supremacy of the Singapore Constitution” (2017) 29 SAcLJ 619. Future courts will have to critically engage with his arguments.

Separation of Powers

As mentioned earlier, the separation of powers has been identified as being fundamental and essential to Singapore’s political system, and indeed part of the basic structure of the Singapore Constitution. What separation of powers means however is often assumed rather than clearly articulated. On a basic level, the separation of powers is understood in the Montesquieuan way as the division and sharing of sovereign power among three constitutional organs — the legislature, the executive and the judiciary. The separation of legislative, executive and judicial powers is seen as necessary to avoid tyranny and preserve liberty. Nonetheless, beyond this basic understanding, “the separation of powers is a flexible idea that can house many different claims of appropriate relationships among the different branches of government.”48Jaclyn L Neo, “Autonomy, Deference and Control: Judicial Doctrine and Facets of Separation of Powers in Singapore” (2018) 5:2 Journal of International and Comparative Law 465 (hereafter, Neo, Separation of Powers). Indeed, “[t]here is not so much one way of separating powers as different forms of separating different powers.”49Ibid at 463. Confusion may also arise due to difficulties in precisely defining legislative, executive, and judicial powers, which would be crucial in determining if there has been a transgression of the separation of powers.50Aileen Kavanagh, “The Constitutional Separation of Powers”, in David Dyzenhaus and Malcolm Thorburn, eds, Philosophical Foundations of Constitutional Law (OUP, 2015) 221, at 222. There could also be disagreement about the priority of values underpinning the doctrine, whether it is to limit power, to protect liberty, or to ensure the rule of law.51Ibid.

Accordingly, there may be different conceptions of separation of powers and different judicial doctrines as being justified on differing conceptions of the separation of powers. The Singapore courts have justified at least three distinctive judicial doctrines on the basis of vindicating the separation of powers, namely the doctrine of the presumption of constitutionality, and the doctrine of judicial review. These doctrines point to differing conceptions of separation, which I have denoted elsewhere as “separation as autonomy of the different branches of government, separation as deference to the political branches, and separation as judicial control of the other branches of government.”52Neo, Separation of Powers. I will discuss these in turn.

On the first, the doctrine of the exclusivity of judicial power posits that judicial power is exclusive and cannot be transferred to other branches of government. Accordingly, legislative or executive incursions into judicial power would be considered unconstitutional. Cases in which this doctrine has been invoked include Mohammad Faizal bin Sabtu. At issue here was whether the sentencing regime set out by the legislature, which requires the court to impose a mandatory minimum sentence is an “impermissible legislative intrusion into the judicial power” and therefore violates the principle of the separation of powers. The underlying focus of the separation of powers is on the autonomy of the different branches of government. The separation of powers could be understood as emphasising autonomy and this is most evident in how it underpins the doctrine of exclusivity of judicial power. Mohammad Faizal however shows that the application of the doctrine could be difficult because of definitional slippage. Beyond the most obvious, it is not easy to differentiate among the three branches. While the court in this case decided that sentencing is within the province of the legislature, barring some specific departures, the Court of Appeal in Prabagaran a/l Srivijayan v Public Prosecutor53(2017) 1 SLR 173. held instead that the sentencing function is not “the exclusive constitutional province of any one Branch54Ibid at (79). and could therefore fall within the functions of any branch.

Even though the High Court appeared to limit the scope of the doctrine of exclusivity of judicial power in the most recent case of Nagaenthran a/l K Dharmalingam v Attorney-General,55(2018) SGHC 112. when it upheld the partial ouster clause, this holding can be reconciled with earlier decisions insofar as it accepted that the ouster clause does not oust judicial review on constitutional grounds, but merely limited the standard of review on other grounds in administrative law. The limited nature of the High Court’s decision is furthermore evidenced by the court’s curious revival of a somewhat arcane distinction between jurisdictional versus non-jurisdictional errors to limit the effect of an ouster clause. This distinction developed by the English common law courts is often considered to have been superseded by developments in the law extending judicial review over all errors of law.56See eg, Page v Hull University Visitor (1993) AC 682.

As mentioned earlier, the presumption of reviewability that appears to be underpinned by the principle of legality may well compete with another doctrine that has been developed by the court, and that is the doctrine of the presumption of constitutionality.57For an examination of the presumption of constitutionality in Singapore, see generally Jack Tsen-Ta Lee, “Rethinking the Presumption of Constitutionality” in Jaclyn L Neo, ed, Constitutional Interpretation in Singapore: Theory and Practice (Routledge, 2016) 141. One way to understand this is in terms of the conflict of competing norms between the principle of legality and a particular conception of the separation of powers. Courts have suggested that the presumption of constitutionality is necessitated by the separation of powers, but as understood from the perspective of deference to the other branches of government. This deference can be due to claims that there are certain functions or competences that fall within the scope of the other branches of government, that they have greater expertise or are institutionally more competent in making certain decisions or that they are more authoritative because they have a democratic mandate form the people.58Aileen Kavanagh, “Defending Deference in Public Law and Constitutional Theory” (2010) 126 LQR 222. Deference refers to the idea that acts of the decision-maker should command respect because of the differentiation of functions and institutions. It should be distinguished from the idea of deference as submission, which is not the understanding of deference used here.59This is the distinction drawn in David Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy” in Michael Taggart, ed, The Province of Administrative Law (Hart Publishing, 1997) at 186, 279.

Lastly, one may also see the separation of powers as entailing robust control of the other branches of government on the basis of the coequal status of the various branches of government. Here, the separation of powers is understood as performing a broader objective of limiting and controlling power. This control conception of the separation of powers60Neo, Separation of Powers, at 471-2, and 481-4. goes beyond mere division to emphasise inter-branch checks.61Carl J Friedrich, Limited Government: A Comparison (Prentice Hall, 1974), at 13. That judicial review is underpinned by the idea of separation as control can be discerned from the seminal case of Tan Seet Eng where the Court emphasised that “each branch of government has separate and distinct responsibilities”, but that within this scheme of separation, it is the judiciary that has “the responsibility for the adjudication of controversies which carries with it the power to pronounce authoritatively and conclusively on the meaning of the Constitution and all other laws”.62Tan Seet Eng at (90). In a way, this more robust idea of judicial review may better vindicate the idea of coequality of the different branches of government.63On this point in administrative law, see Swati Jhaveri, “Localising Administrative Law in Singapore: Embracing Inter-branch Equality” (2017) 29 SAcLJ 828. Indeed, the presumption of constitutionality, premised as it is on deference to the other branches (whether on the basis of expertise, functionality, and/or democratic legitimacy), sits uneasily with the idea of coequality of the judiciary to the other branches of government .

Conclusion

In a recent lecture, Chief Justice Sundaresh Menon highlighted important aspects in Singapore’s approach to the judicial control of executive powers, which included judicial articulation of the principle of legality and the separation of powers.64Chief Justice Sundaresh Menon, “Executive Power: Rethinking the Modalities of Control” (Annual Bernstein Lecture in Comparative Law, delivered at Duke University School of Law, 1 November 2018) (hereafter, Chief Justice Menon, Executive Power). Indeed, he emphasized that in Singapore, it is the constitution, and not Parliament, that is supreme.65Ibid at (40). Invoking the seminal Supreme Court of the United States case of Marbury v Madison,66Marbury v Madison 5 US 137 (1803) at 177. the Chief Justice affirmed that “legality of every exercise of power is ultimately referable to the Constitution” and as per Marbury v Madison, it ““is emphatically the province and duty of the Judicial Department” to explicate”.67Chief Justice Menon, Executive Power, at (40). Thus, even though the Chief Justice emphasized that the Singapore judiciary “tended to be leery of going outside the confines of the text of the Constitution to find rights” and that the judiciary should not sit as a “super-legislature”,68Ibid at (49). this seemingly textualist focus should not detract from the important articulations of normative principles that the court have been undertaking in the past years. Instead, as recent cases show, and as the Chief Justice’s speech implicitly affirms, there is a need to continue to identify and substantiate the unwritten norms of the constitution so as to better understand and interpret Singapore’s foundational document.

Endnotes   [ + ]

1.Chan Sek Keong, “Judicial Review – From Angst to Empathy” (2010) 22 SAcLJ 469.
2.VK Rajah, “The Rule of Law” (Speech at the Opening of the Legal Year 2015), edited excerpt from The Straits Times (Singapore, 7 January 2015) < https://www.agc.gov.sg/docs/default-source/speeches/2015/opening-of-legal-year-2015_attorney-general-v-k-rajah’s-speech_5-jan_checked-against-delivery.pdf?sfvrsn=2> accessed 21 September 2015.
3.Sundaresh Menon, “The Rule of Law: The Path to Exceptionalism” (2016) 28 SAcLJ 413 at (30).
4.See Jack Tsen-Ta Lee, “Foreign Precedents in Constitutional Adjudication by the Supreme Court of Singapore, 1963–2013” (2015) 24:2 Washington International Law Journal 253 at 260.
5.(1988) 2 SLR(R) 525.
6.Ibid at (86).
7.Ibid at (88)-(92). Note however that the Court cautioned that where national security is implicated, the courts will subject the decision to less intense scrutiny.
8.See Lee Mau Seng v Minister for Home Affairs (1971–1973) SLR(R) 135.
9.(2011) 1 SLR 1189.
10.Ibid at (79). See also Lim Meng Suang and another v Attorney-General (2013) 3 SLR 118 at (112).
11.(2011) 2 SLR 1189 at (31).
12.(2013) 4 SLR 1.
13.Emphasis added. Note that this issue focused on single member constituencies since section 24(2A) of the Parliamentary Elections Act (Cap 218, 2011 Rev Ed Sing) provides that no writ of election shall be issued to fill a GRC vacancy “unless all the Members for that constituency have vacated their seats.” The constitutionality of this provision is currently being challenged. See Wong Souk Yee v Attorney-General (2018) SGHC 80.
14.Vellama at (92).
15.Ibid at (87).
16.Ibid at (92).
17.Ibid at (92).
18.Ibid at (87).
19.The other norm it invoked was Westminster constitutionalism. For further discussion, see Kevin YL Tan, “Into the Matrix: Interpreting the Westminster Model Constitution”, in Jaclyn L Neo, ed, Constitutional Interpretation in Singapore: Theory and Practice (Routledge, 2017) 50 (hereafter Kevin Tan, Into the Matrix).
20.Chng at (86).
21.(2016) 1 SLR 779.
22.Jaclyn L Neo, “All Power Has Legal Limits: The Principle of Legality as a Constitutional Principle of Judicial Review” (2017) 29 SACLJ 667 (hereafter Neo, Principle of Legality).
23.The presumption of constitutionality is premised on the culture of authority, whereby the legitimacy and legality of government action is based on the fact that the actor is authorised to act: Moshe Cohen-Eliya & Iddo Porat, “Proportionality and the Culture of Justification” (2011) 59:2 Am J Comp L 463, at 474-6.
24.Neo, Principle of Legality, at (47).
25.Ibid.
26.See eg, Lim Teng Ee Joyce v Singapore Medical Council (2005) 3 SLR(R) 709.
27.AIR 1973 SC 1461.
28.Teo Soh Lung v Minister for Home Affairs (1989) 1 SLR(R) 461.
29.See eg, Letter from Thomas Jefferson to John Adams, “Revolt of the Nobles” (Paris, 30 August 1787) on file at From Revolution to Reconstruction, online: <www.let.rug.nl/usa/P/tj3/writings/brf/jefl62>; Jaclyn L Neo, “Should constitutional principles be eternal?”, The Straits Times 6 October 2014), online: <https://www.straitstimes.com/opinion/should-constitutional-principles-be-eternal>.
30.(1990) 1 SLR(R) 38.
31.(2012) 4 SLR 947.
32.Ibid at (11).
33.(1967) AC 259.
34.(2015) 2 SLR 1129.Ibid at (72).
35.Ibid at (72).
36.Ibid at (71).
37.(2017) SGHC 163.
38.See eg, Dan Meagher, “The Principle of Legality as Clear Statement Rule: Significance and Problems”, (2014) 36 Sydney L Rev 413.
39.See Kevin Tan, Into the Matrix, 50.
40.Ibid.
41.Rosalind Dixon and David Landau, “Transnational constitutionalism and a limited doctrine of unconstitutional constitutional amendment” (2015) 13:3 ICON International Journal of Constitutional Law 606.
42.Jaclyn L Neo, “Towards a ‘Thin’ Basic Structure Doctrine in Singapore” (17 January 2018), online: I.CONnect <http://www.iconnectblog.com/2018/1/towards-a-thin-basic-structure-doctrine-in-singapore-i-connect-column/>.
43.See Yong Vui Kong (Caning), at (69).
44.Yaniv Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (OUP, 2017) at 218-224.
45.See eg, Calvin Liang & Sarah Shi, “The Constitution of Our Constitution: A Vindication of the Basic Structure Doctrine” Singapore Law Gazette (August 2014) 12, online: < http://v1.lawgazette.com.sg/2014-08/1104.htm>.
46.Former Chief Justice Chan was responding to Harding’s argument that there is no constitutional moment to ground the applicability of such a doctrine: Andrew Harding, “Does the ‘Basic Structure Doctrine’ Apply in Singapore’s Constitution? An Inquiry into Some Fundamental Constitutional Premises”, Jaclyn L Neo, ed, Constitutional Interpretation in Singapore: Theory and Practice (Routledge, 2016) 37.
47.Chan Sek Keong, “Basic Structure and Supremacy of the Singapore Constitution” (2017) 29 SAcLJ 619.
48.Jaclyn L Neo, “Autonomy, Deference and Control: Judicial Doctrine and Facets of Separation of Powers in Singapore” (2018) 5:2 Journal of International and Comparative Law 465 (hereafter, Neo, Separation of Powers).
49.Ibid at 463.
50.Aileen Kavanagh, “The Constitutional Separation of Powers”, in David Dyzenhaus and Malcolm Thorburn, eds, Philosophical Foundations of Constitutional Law (OUP, 2015) 221, at 222.
51.Ibid.
52.Neo, Separation of Powers.
53.(2017) 1 SLR 173.
54.Ibid at (79).
55.(2018) SGHC 112.
56.See eg, Page v Hull University Visitor (1993) AC 682.
57.For an examination of the presumption of constitutionality in Singapore, see generally Jack Tsen-Ta Lee, “Rethinking the Presumption of Constitutionality” in Jaclyn L Neo, ed, Constitutional Interpretation in Singapore: Theory and Practice (Routledge, 2016) 141.
58.Aileen Kavanagh, “Defending Deference in Public Law and Constitutional Theory” (2010) 126 LQR 222.
59.This is the distinction drawn in David Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy” in Michael Taggart, ed, The Province of Administrative Law (Hart Publishing, 1997) at 186, 279.
60.Neo, Separation of Powers, at 471-2, and 481-4.
61.Carl J Friedrich, Limited Government: A Comparison (Prentice Hall, 1974), at 13.
62.Tan Seet Eng at (90).
63.On this point in administrative law, see Swati Jhaveri, “Localising Administrative Law in Singapore: Embracing Inter-branch Equality” (2017) 29 SAcLJ 828.
64.Chief Justice Sundaresh Menon, “Executive Power: Rethinking the Modalities of Control” (Annual Bernstein Lecture in Comparative Law, delivered at Duke University School of Law, 1 November 2018) (hereafter, Chief Justice Menon, Executive Power).
65.Ibid at (40).
66.Marbury v Madison 5 US 137 (1803) at 177.
67.Chief Justice Menon, Executive Power, at (40).
68.Ibid at (49).