Legal institutions

4.1 Parliament and the making of law

Singapore's Parliament is a unicameral legislature. Presently there are 94 seats in Parliament, of which 84 are occupied by elected Members of Parliament (MPs), while the other 10 seats are occupied by nine Nominated MPs and one Non­Constituency MP.

There must be a session of Parliament â€?once at least in every year' and Parlia­ment must sit for a new session within six months of the last sitting of the previous session.⁹⁴ The life span of Parliament is usually five years, although the President can dissolve Parliament at any time â€?if he is advised by the Prime Minister to do so' and if the Prime Minister commands the confidence of the majority of the Members of Parliament. A general election must be held within three months of Parliament's dissolution. Under art 58 of the Constitution, â€?the power of the Legislature to make laws shall be exercised by Bills passed by Parliament and assented to by the President.'

While Bills may be introduced by MPs in their personal capacity or by the Gov­ernment, private member Bills are rare. The last time such a Bill was introduced was Nominated MP Walter Woon's Maintenance of Parents Bill in 1996. Govern­ment Bills typically originate in the various Ministries and departments and are drafted by the Attorney-General's Chambers (AGC). Before a Bill is drafted, the Cabinet must, in principle, agree to the Bill. Next, the Permanent Secretary of the Ministry initiating the legislation will prepare a draft of the Bill or a detailed statement of its proposed contents and refer it to the AGC.

contain a provision enabling subsidiary legislation to be made. Once the Bill has been printed and vetted by the AGC, a copy of the Memorandum to the Cabinet is sent to the Permanent Secretary for the Ministry of Law for approval before submission to the Cabinet.

All Bills go through three readings before they are passed into law. At the First Reading, the Member introducing the Bill will read aloud the long title of the Bill and then present the Bill to the Clerk at the Table. The Clerk will then read aloud the short title of the Bill. No questions are put to the mover of the Bill and a date is fixed for the Second Reading. After the Bill's first reading, the Clerk will: (a) publish the Bill in the Gazette: (b) print the Bill; and (c) circulate it to Members.

During the Second Reading, the Minister moving the Bill usually delivers a speech outlining the objectives of the Bill. Members will then debate the Bill. At the end of the debate a motion is put �That the Bill be now read a Second Time'. At this point, a vote is taken on which there may or may not be a division. Once the Bill passes its Second Reading, it moves on to the Committee Stage where the Bill is put before either the Committee of the Whole House, comprising all MPs, or a Select Committee. If the Bill goes to a Select Committee, a Chairman and committee is appointed and given powers to call persons, records and other doc­uments and must list their findings and recommendations in a Select Committee Report. If the Bill is not committed to a Select Committee, the House resolves itself into the Committee of the Whole House and deliberates the Bill in great detail, going through each clause. The Committee may only discuss the details of the Bills and not its underlying principles.

At this stage, amendments to the Bill may be made but the Bill cannot be rejected outright since that power is reserved for the House. After the Bill has been dealt with in committee, a report is made to the House.

The Third Reading is similar to the Second Reading although the debate is usually far more limited. Amendments to correct errors or oversights may be made with the Speaker's permission but no amendments of a material charac­ter may be made. The Minister moving the Third Reading may again make a speech outlining the changes made and perhaps explain what repercussions the legislation would have. At the end of the debate, the Bill is put to a vote, and once accepted, will have been passed by Parliament. However, further steps are needed before the Bill becomes law.

After the final reading and before the Bill is presented to the President for assent, the Speaker will send an authenticated copy to the Presidential Council for Minority Rights for its consideration. The Council must consider the Bill and

make a report to the Speaker within 30 days. This 30-day limit may be extended if the Bill is particularly complex or difficult. If the Council presents no report within the time limit, it is presumed that no provision of the Bill contains a â€?differ­entiating measure', meaning one â€?which is, or is likely in its practical application to be, disadvantageous to persons of any racial or religious community and not equally disadvantageous to persons of other such communities, either directly by prejudicing persons of that community or indirectly by giving advantage to persons of another community'.⁹⁵

If the Council issues an adverse report, Parliament can either amend the Bill and resubmit it to the Council or proceed to present the Bill for President's assent in spite of the adverse report.

Most primary legislation have provisions for the enactment of subsidiary leg­islation by the Minister. All subsidiary legislation is also subject to the scrutiny of the Presidential Council for Minority Rights. The Minister in charge must, within 14 days of the legislation's publication, submit an authenticated copy to the Council. The Council has 30 days to consider it and report to the Speaker and the appropriate Minister whether the subsidiary legislation contains any differentiating measure. If, in the opinion of the Council, there appears to be a differentiating measure, then the offending provision can either be revoked or amended within six months. Alternatively, Parliament can pass a reso­lution confirming the provision in question. If the Council does not report within the 30-day period, it is presumed that the Council is of the opinion that the subsidiary legislation contains no provision that is a differentiating measure.

Parliament's legislative powers are extensively amplified in an emergency. Notwithstanding anything in the Constitution, Parliament can �make laws with respect to any matter, if it appears to Parliament that the law is required by reason of the emergency'.

Constitution; (b) the provisions specified in art 5(2A) relating to areas where the President can act in the exercise of personal discretion; and (c) the provisions relating to religion, citizenship or language (art 150(5)(b)).

Article 150 is a very special provision because it confers very wide legislative powers on the executive. Under art 150(2), the President may legislate only when an Emergency is declared and Parliament is not sitting. Thereafter, the President is required to summon Parliament as soon as is practicable. The Presi­dent has powers to promulgate Ordinances until Parliament is sitting. Under art 150(3), a Proclamation of Emergency maybe revoked, or maybe annulled by a resolution of Parliament. A lot of delegated legislation is often passed during an Emergency. While ordinary legislation inconsistent with the Constitution may be validated by art 150(5)(a), this provision does not appear to protect delegated legislation.

4.2 Thejudiciary

Singapore's judiciary is divided into the Supreme Court and the Subordinate Court. The Supreme Court comprises the Court of Appeal (as Singapore's highest court) and the High Court, while the Subordinate Court comprises a number of courts, including the Magistrates' Court, District Court and even the Small Claims Tribunal.

The Court of Appeal consists of the following judges: (a) the Chief Justice as President of the Court; (b) Vice Presidents of the Court of Appeal; (c) Judges of Appeal (other than Vice Presidents); and (d) other puisne judges of the High Court who may be appointed from time to time. As its name suggests, the Court of Appeal has only appellate jurisdiction over all civil and criminal matters.

The High Court consists of puisne judges and Judicial Commissioners. To qualify to be a Supreme Court judge, a candidate has to be a �qualified person' within the meaning of the Legal Profession Act of at least 10 years' standing. The High Court has both original and appellate jurisdictions. In its appellate jurisdiction, the High Court hears appeals from the subordinate courts, especially appeals from the Magistrates' Courts. In its original jurisdiction, it hears cases which are beyond the jurisdiction of the subordinate courts. Certain types of cases, for example, the offence of murder can only be tried at the High Court. Likewise, cases where the damages involved amount to more than $250 000 must be heard in the High Court and nowhere else.

In addition to its original and appellate jurisdictions, the High Court also has supervisory and revisionary jurisdictions. In the case of its supervisory juris­diction, the High Court ensures that all inferior courts and tribunals act within their allotted jurisdictional limits. The revisionary jurisdiction of the High Court empowers it to call for and examine proceedings of subordinate courts to satisfy itself of the correctness and legality of these decisions. This can mean looking at the finding of a case, or even the punishment meted out.

The High Court does not have jurisdiction over certain family matters under Muslim law, such as marriage and divorces. However, it does have concurrent jurisdiction with the Syariah Court over civil proceedings relating to maintenance of wife and child, custody, and disposition and division of property on divorce in the case of Muslim marriages.

Specialist courts within the Supreme Court, such as the Admiralty Court and Intellectual PropertyCourt (both created in 2002), have been established. These courts function like the High Court in all respects except that the judges who preside over them have specialist knowledge in these areas of law. One �specialist’ court that is constituted on an ad hoc basis is the Constitutional Tribunal, which hears questions referred to it by the President on the effect of constitutional provisions. There is no appeal from decisions of this court.

Under the Subordinate CourtsAct, the subordinate courts include: (a) District Court; (b) Magistrates’ Courts; (c) Coroner’s Court; (d) Juvenile Court; (e) Fam­ily Court; and (f) Small Claims Tribunal. The Administration of Muslim Law Act establishes the SyariahCourtwhosejurisdictionis to hearcases involving Muslim law relating to: (a) marriage; (b) divorce; (c) betrothal, nullity of marriage or separation; (d) disposition or disposal of property on divorce; and (e) payment of mas-kahwin (maintenance) and matta’ah (consolatory gifts). The SyariahCourt is presided over by a President who is appointed by the President of Singapore. Cases from the Syariah Court are appealable to the Appeal Board or the Majlis Ugama Islam, Singapura or Council of Muslim Religion, Singapore (Majlis, for short). The President of Majlis is also appointed by the President of Singapore and the decision of Majlis is final.

In September 1994 a new art 100 was inserted into the Constitution. It estab­lished a special tribunal consisting of not less than three Supreme Court Judges. The President of Singapore may refer to this tribunal �for its opinion on any ques­tion as to the effect of any provision’ of the Constitution. The tribunal is under a duty to �consider and answer the question so referred as soon as may be and in any case not more than 60 days after the date of such reference.’ Any dissenting opinions of any judge must accordingly be reflected in the opinion rendered to the President, although the majority decision shall be considered the opinion of the tribunal and shall be pronounced in open court. The opinion is not subject to question in any court.

4.3 Thejudges

In Singapore all judges (including magistrates) are appointed by the President. In appointing the Chief Justice, the Judges of Appeal and the Judges of the High Court, the President acts in his discretion and must concur with the Prime Minister’s advice. In the appointment of subordinate court judges (that is, District Judges and magistrates), the President acts on the Chief Justice’s advice.

Judges of the Supreme Court have security of tenure and of remuneration.^[1068] Article 98(1) provides that �a judge of the Supreme Court shall hold office until he attains the age of 65 years or such later time, not being later that six months after he attains that age, as the President may approve.' Furthermore a Supreme Court Judge's remuneration and terms of office, including pension rights �shall not be altered to his disadvantage after his appointment.'^[1069] This ensures that judges cannot be threatened with pay cuts.

In 1971 the shortage ofHigh CourtJudges led to an amendment to art94 of the Constitution to permit the appointment of �supernumerary' or �contract'judges. This allowed Supreme Court Judges who were compelled by the Constitution to retire at the age of 65 to stay on as judges on a contractual basis, usually for terms of between one and three years.

Difficulties in getting senior legal practitioners to accept appointments to the Bench led to an amendment to the Constitution in 1979 to create the post of Judicial Commissioner. Judicial Commissioners can be appointed on a tempo­rary basis, allowing practitioners who take up such appointments to return to private practice when their terms are up. The terms of appointments for Judicial Commissioners, like those of supernumerary judges, are for between six months and three years, and are often viewed as a prelude to a full judgeship. In 1993 Chief Justice Yong Pung How (as he then was) announced that he would appoint Judicial Commissioners for very short terms and to hear long cases that would otherwise disrupt normal court hearing schedules. So far, no Judicial Commis­sioners have been appointed to hear specific cases on a �one-off' basis, even though art 94(5) does not preclude such an appointment.

4.4 Judicial review powers^[1070]

Article 93 of the Constitution vestsjudicial powerin the Supreme Court. Readwith art 4, which declares the Constitution to be the �supreme law', the Court exerts the power of judicial review over the constitutionality of legislation. The High Court has only once in its history declared a statutory provision unconstitutional,^[1071] but this was reversed on appeal by the Court of Appeal.^[1072] This power of judicial review is, however, circumscribed by the Constitution itself. Article 149 of the Constitution provides that legislation passed under Part XII (Special Powers Against Subversion and Emergency Powers) shall be valid �notwithstanding that it is inconsistent with Article 9, 11, 12, 13 or 14.' Even with the procedural safeguards guaranteed under art 151, the fact remains that the courts are unable to pronounce on the constitutionality of such legislation.

Various statutes also attempt to oust the supervisory jurisdiction of the High Court through �ouster clauses'. However, these have, for the most part, been unsuccessful in preventing the courts from considering the validity of admin­istrative acts on the basis of legality except where presidential discretion is involved.^[1073] For example, s 8B(2) of the Internal SecurityAct provides:

There shall be no judicial review in any court of any act done or decision made by the President or the Minister under the provisions of this Act save in regard to any question relating to compliance with any procedural requirement of this Act governing such act or decision.

Singapore courts have notdeveloped a robust approach towards the protection of individual rights, notwithstanding the following injunction of the Privy Council:

[T]he way to interpret a Constitution on the Westminster model is to treat it not as if it werean Act ofParliament, but �assui generis, calling for principles of interpretation ofits own, suitable to its character... without necessary acceptance of all the presumptions that are relevant to legislation of private law, as in that case...' [T]heir Lordships would give to Part IV of the Constitution of the Republic of Singapore a generous interpretation avoiding what has been called �the austerity to tabulated legalism', suitable to give to individuals the full measure of the [fundamental liberties] referred to.^[1074]

The courts are generally trusting of the executive and have often endorsed state imperatives in their decisions regarding fundamental liberties, rather than put the executive on strict proof for any derogations of individual rights or liberties. Indeed, in Chan Hiang Leng Colin v PP, the High Court even read into the Consti­tution its interpretation of the state's �paramount mandate'. Yong Pung How CJ (as he then was) declared:

The sovereignty, integrity and unity of Singapore are undoubtedly the paramount mandate of the Constitution and anything, including religious beliefs and practices, which tend to run counter to these objectives must be restrained.^[1075]

This sentiment, though articulated in the High Court, permeates throughout the judiciary. In the case of Jabar v Public Prosecutor, the appellant argued that the sentencing to death a prisoner who had been on death row for five years was contrary to art 9 of the Constitution as constituting cruel and inhuman punishment. The Court of Appeal declared:

Any law which provides for the deprivation of a person's life or personal liberty, is valid and binding so long as it is validly passed by Parliament. The court is not concerned with whether it is also fair, just and reasonable as well.^[1076]

4.5 High Court’s Supervisoryjurisdiction

Beyond its judicial review powers, the High Court of Singapore, like that of England, also exercises a supervisory jurisdiction over inferior tribunals and administrative bodies. This is done by the issue of prerogative writs, such as habeas corpus and quo warranto. The principles of review have echoed those of the English courts, particularly the GCHQ case^[1077] where Lord Diplock gave us his 3 �I's - irrationality, illegality and procedural impropriety - as heads of review. This test was explicitly adopted by the Court of Appeal in Chng Suan Tze v Ministerfor Home Affairs:

[W]hat national security requires is to be left solely to those who are responsible for national security... However... it has to be shown to the court that considerations of national security were involved. Those responsible for national security are the sole judges of what action is necessary in the interests of national security, but that does not preclude the judicial function of determining whether the decision was in fact based on grounds of national security.^[1078]

5