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Fundamental Constitutional Concepts & Branches of Government…

- - - - Need strong central govt authority to govern, but "power corrupts and absolute power corrupts absolutely". But can have good rulers - White Paper on Shared Values
      - Provides a set of standards by which exercises of public power may be evaluated.
      - Cultural is not universal, but contextual. It influences the constitutional order (national values reflect the cultural element). Junzi idea influenced political defamation cases.
- - - - Art 24: Cabinet consists of the PM and other Ministers. Art 25: President shall appoint PM acting in accordance with the advice of the PM.
        Art 95(1): CJ, JA and HC Judges shall be appointed by the President if he, acting in his discretion, concurs with the advice of the PM.
        Art 95(3) security of tenure: office of Judge of the Supreme Court shall not be abolished during his continuance in office.
      - Art 21(1): President in general acts on the advice of the Cabinet.
      - Cabinet Ministers are prohibited from holding any office of profit or actively engage in commercial enterprises to prevent conflict of interest.
      - Principle of collective responsibility to Parliament (Ministers to support all govt decisions in public).
      - PM is the head of the Govt, leads the Cabinet and select its members. PM may designate Ministers to specific ministries, or without portfolio in the PM's office.
        Ministers may come from different political parties, but in SG, it has been from PAP.
        The Cabinet not only directs and controls the Govt, but has significant law-making function in collectively setting the legislative agenda and being able to guarantee this through party numbers and discipline.
        Theoretically, Parliament is a "check" on Cabinet because Ministers are called upon to justify policies before the House (but weak sanction).
        -Thio
    - - Rationale for EP
        
        Report of the Constitutional Commission 2016:
        In the First White Paper, 2 reasons were given for transforming the office into an elected one - guard against damage to economic prospects that could come about by a free-spending Govt, and constitutional safeguards to maintain meritocracy and impartiality in the Public Service.
        Second White Paper developed further, proposing right to veto annual budgets of the Govt if they sought to draw from past reserves, and key public service appointments, other fiscal safeguards, ISA detention, etc.
        1990 Select Committee Report stated that the most important of the safeguard roles is that of protecting reserves.
        
        Principles that have informed the evolution of the EP (above 2016 report):
        EP was a check on powers of the Govt in relation to 2 key assets.
        
        financial reserves.
        
        SG's value proposition of an efficient infrastructure anchored in an incorruptible Public Service.
        
        Thio: EP to create a dualist democracy, and creates an institution based on intra-branch scheme of checks and balances. It is a safeguard against lawful actions against national interests. EP scheme seems to be rooted in the fear of "freak election results". President would be part of a "tow-key safeguard mechanism" - first key held by PM and Cabinet, second by EP who could concur or demur from a Cabinet decision.
      - Qualifications and Disabilities of the President
        
        Art 19: qualifications and requirements. Art 19A: disabilities. Art 19B: reserved elections.
        
        Thio's journal:
        EP is to safeguard against potential fiscal mismanagement of national reserves by a rogue parliamentary executive. Elected because he would be legitimacy and moral authority to block the Govt, derived from the will of the people.
        But PEC consists of unelected bureaucrats or members of the establishment.
        EP may be overruled by 2/3 majority if he withholds assent to a supply bill - effectively powerless.
        Criticise some of the qualifications. And senior govt officials have downplayed EP's function and highlighted its ceremonial role - are the exacting qualifications excessive?
        PEC just needs to be subjectively satisfied, and not constitutionally obliged to give reasons behind its decisions - 2005 Presidential elections, only 1 out of 4 applicants received COE.
        Suggested reforms to EP procedures.
        PEC is an unnecessary filter? Democratic character of the EP electoral process is hampered by PEC and stringent elitist criteria. Arguments against allowing presidency to be contested through direct elections is unconvincing.
        
        Thio, A Treatise: Art 19(2)(e) requires that candidates convince the PEC that they are persons of "integrity, good character and reputation", which is highly subjective. A contrary finding might be defamatory, so s 8A PEA confers immunity.
        Qualifying criteria is more stringent that PM's, who has more substantial governing powers.
        Qualifying criteria is too high. President works with Council of Presidential Advisors, and a purposeful construction of Art 19(2)(g) would be to ensure a candidate had financial literacy, not financial wizardry, since he has experts to consult. Finance Ministers aren't even subject to these criteria.
        Having PEC may deter potential candidates.
      - Performance of the Functions of the President
        
        Distinction between discretionary powers and powers exercised on Cabinet's advice - e.g. Yong Vui Kong (2011), Art 22P President had no discretion, must act on Cabinet's advice. It does not relate to President's ultimate duty of protecting financial assets and preserving integrity of Public Service.
        
        Fiscal powers
        
        Kevin Tan: If President withheld assent to the Supply Bill, Parliament could overrule with 2/3 majority.
        Decision by President Nathan and CPA to assent to drawing down of reserves was made by a group of non-elected officials (Nathan sole candidate). It is not unconstitutional, but the key actors lacked moral authority.
        Mechanisms of checks and balances between cabinet and President works only where President concurs.
        
        Constitution was amended in 1994 to remove spending on defence and security from presidential purview. More developments in Thio, A Treatise.
  - - - Vellama:
        Westminster model of govt, with the party commanding majority support in Parliament having mandate to form the govt. The authority of the govt emanates from the people.
        SG modified the Westminster model, and introduced NCMP and GRCs, but these do not change the basic character of an elected MP.
      - Thio, Parliamentary Debates:
        Democracy's central tenet is that govt authority is based on the will of the people.
        Institutional expression of democracy must be tailor-made to suit the relevant local conditions, but there are universal core principles. A functioning democracy has the capacity for self-correction.
        GRC scheme corrects minority under-representation, but complicates the idea of representative democracy. It derogates from Art 12, thus there is a notwithstanding clause in Art 39A(3) to exempt this violation).
      - Lee Hsien Loong, Parliamentary Debates:
        The Govt shall call a by-election when a seat falls vacant, but PM has full discretion on timing. For GRC, no need to call unless all members vacate.
        SG's philosophy focuses on the political party, not the MP - if MP changes sides, he no longer represents the party but the vacancy does not affect mandate of the Govt. This encourages voters to think carefully since they are voting for their representative and the party that forms the govt, and maximises the chance of a stable, effective govt.
        Reasons for not having fixed deadlines (but does not address concerns)
        In judging whether our system is right for SG, the acid test is what works for SG and improves the lives of Singaporeans.
    - - Lawmaking and approval of budgets
        
        PP v Taw Cheng Kong:
        s 5 RSIA says that all plenary legislative powers previously possessed by the Malaysian Parliament ceased to extend but is transferred and vested in the SG Parliament. s 6 could not have disempowered parliament of its extraterritorial powers, thus s 37(1) of the PCA was not ultra vires the powers of the Legislature.
        
        Thio:
        Legislative power extends to making extraterritorial laws, and legislature must be aligned with the Consti.
        Art 58: law-making power is exercised by Bills passed by Parliament, which receive presidential assent, subject to the PCMR.
      - Ensuring accountability of the Executive
      - Ensuring accountability of the Judiciary
  - - - See notes on SC, HC and CA.
      - Michael Hor:
        Appointment and removal of senior judges - PM has primary power of appointment, and must consult with CJ and President has power to veto. How can expect Judiciary to check on Ex when appointed by Ex? Ex has power to extend tenure of a superior judge beyond retirement age, which has been said to be incentive to be in the good books of the ex.
        Subordinate judiciary - members of the Legal Service, under the Legal Service Commission. Members of the PSC are appointed by PM and President together.
      - Thio: Judicial power is not defined in the Consti, but constitutes the capacity of a court to give effect to its determination y granting orders or relief sought by successful party to the dispute. The inherent jurisdiction of the court is derived from the very nature of the court as a superior court of law.
    - - Chan Sek Keong: the Judiciary is one of the three arms of govt, co-equal in status, and vested with power to check the other 2 branches. Its other primary function is to adjudicate disputes. A Judiciary that is not independent would not be able to fulfil such a role, and would provide a weak foundation for democracy and ROL to flourish.
      - See relevant articles in notes, especially on tenure and appointment.
      - Michael Hor: PM possesses primary power of appointment, but must consult CJ and President. Allowing PM to appoint does not make sense since Judiciary is a check against the abuse of executive power.
      - Temporary judges and lower judiciary - more in Chan Sek Keong article.
      - Thio: Judicial independence is not an end itself. it is integral to sustaining the rule of law. It requires the judiciary to enjoy a degree of institutional autonomy and individual judges to enjoy sufficient personal autonomy from interference of the ex or leg branches. Substantive and personal independence.
    - - Exercise of Judicial Power
        
        Art 4: Supremacy of the constitution. Art 93: Judicial power vested in the SC and such subordinate courts.
        
        Liyanage v The Queen:
        Although there was no express vesting of judicial powers, the provisions of the Consti indicated an intention to secure the judiciary from political, legislative and executive control. Judicial power was intended to vest only in the Judiciary.
        In this case, the Acts lacked generality and were passed clearly aimed at the particular known individuals who have already been arrested since it was clear that after they were convicted, the law should revert to its normal state.
        Acts were ultra vires and convictions must be quashed.
        
        Hinds v The Queen
        
        Kho Jabing: CA had inherent power to reopen criminal appeal, by virtue of Art 93. But the appellant must show certain things to show miscarriage of justice.
        
        Yong Vui Kong (2010):
        The court had no jurisdiction to reopen and reexamine the substantive merits of a criminal case. But this does not involve a situation where new evidence was discovered which might show a probability that the accused might have been wrongly convicted or innocent, and these cases should not be accorded a status of finality and immutability.
        Finality principle should not be applied strictly where the life and liberty of the accused is at stake.
        
        Thio: clash between legislative and judicial power, and executive and judicial power.
      - Ensuring accountability of the Executive and Legislature
        
        Lim Meng Suang (CA): Whilst courts did "make" law, this is in the context of interpretation of statutes and development of common law and equity. To permit the court the power to declare a statute inconsistent with Art 12(1) because the object of the statute was illegitimate would be usurping the legislative function.