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Inter-branch checks in upholding the separation of powers
While its main influence is English law, Singapore’s legal system has, indeed, since national independence, evolved increasingly towards its local context. The developments of government and constitutionalism have brought about distinctive key features in its system of checks and balances.

In the scheme of checks and balances, a few issues arise due to the long-standing one-party dominance in Singapore’s political system. Since the 1963 general elections, the People’s Action Party has recurrently prevailed as the majority party in Parliament. In the recent 2011 general elections, they managed to capture 81 of 87 seats contested. The implications of such political state of affairs will be explicated accordingly below.

Legislative checks on the Parliamentary Executive in Singapore
As mentioned above, Singapore has a parliamentary executive, in which Ministers are drawn from and accountable to Parliament. In embracing the “efficient secret”, it is imperative to understand that the parliamentary executive does not mean government by Parliament; it is a separate and distinct branch of power, suited to make policies and carry out executive decisions.

However, due to the party system, the Cabinet executive often comprises the leaders of the majority party in Parliament. As such, they may then assert control over the legislative agenda. One associated problem is that of an “elective dictatorship” – Lord Hailsham describes it as the dominance of the Executive over a subservient Parliament. The exercise of control by one branch over another would, in theory, undoubtedly contravene the doctrine of pure separation of powers.

Doctrine of ministerial responsibility
The doctrine of ministerial responsibility is a constitutional convention adopted from the Westminster constitutional model. Following this doctrine, Parliament is to impose a check on the Cabinet by scrutinising Government Bills and actions, and calling upon ministers to justify policies before the House in open debate. This ensures that the Cabinet is accountable not only to Parliament, but also to the public, who have access to transcripts of Parliamentary debates.

Consistent with the party system, the Singapore Government observes collective ministerial responsibility, or collective Cabinet responsibility. This is enshrined in Article 24(2) of the Constitution, which states that “[s]ubject to the provisions of this Constitution, the Cabinet shall have the general direction and control of the Government and shall be collectively responsible to Parliament.” According to Prime Minister Goh Chok Tong, as he was then in 2002, “[t]he principle of collective responsibility means that there is an agreement between the Prime Minister and his Cabinet colleagues that they will stand together as a team when accounting for their actions before Parliament.”  Aside from accountability of the Government, this principle also seeks to enhance inter-ministry co-ordination by ensuring that all Ministers share the same broad policy positions, and that there are no “unnecessary duplication or, worse, mutual contradiction”.

This check on the executive branch, however, is a weak one. As earlier mentioned, Cabinet Ministers are often the leaders of the majority party in Parliament. They may reinforce party discipline and loyalty through the party whip such that MPs from that party conform to the party line. This could mean that the Parliamentary majority are less inclined, if at all, to oppose or challenge the executive’s decisions.

Opposition Members of Parliament
Given the one-party dominance in Singapore, the opposition MPs in Parliament play a crucial role in checking the executive. They are to enforce the doctrine of ministerial responsibility by providing constructive criticism of executive policies. They are also entitled to vote for or against Bills and motions, but this may exercise little influence over majoritarian power. As such, the effectiveness of the opposition hinges on its ability to keep the executive, as well as the majority party, vigilant and accountable to society.

Non-Constituency Members of Parliament
In addition, Parliament is also composed of Non-Constituency Members of Parliament (NCMPs). Their role is provided for in Art 39(1)(b) on the basis of ensuring “the representation in Parliament of a minimum number of Members from a political party or parties not forming the Government”. There are to be no more than 9 NCMPs returned at a general election. The NCMP scheme is regulated by sections 52 and 53 of the Parliamentary Elections Act.

Marking a departure from the Westminster model, the NCMP scheme was conceived to introduce alternative political voices in Parliament. According to Deputy Prime Minister Wong Kan Seng, the presence of a Parliamentary minority would help younger MPs gain experience in debate, ensure transparency of Parliamentary proceedings and “dispel any suspicions of cover-ups”, as well as give the opposition a forum to put forth their agenda. NCMPs enjoy the same privileges and immunities as elected Members, but they cannot vote on a Bill to amend the Constitution, a Supply, Supplementary or Final Supply Bill, a Money Bill, a vote of no confidence in the Government or a motion for the removal of the President from office.

Some commentators have remarked that the NCMP scheme is premised on the assumption that the one party-dominance will continue to govern Singapore’s political state of affairs. Opposition MP Low Thia Kiang opined that Singapore ought to “build up a system in which the Opposition can be elected and can be properly represented in this House rather than a system encouraging or incentivising Singaporeans to vote for the PAP, who will provide you with NCMPs”. Nonetheless, the scheme gives the opposition parties a platform to share their political ideas, as well as augment opposition strength in Parliament as a check on the executive.

Nominated Members of Parliament
Art 39(1)(c) further provides for the role of Nominated Members of Parliament (NMPs) in Parliament, departing yet again from the Westminster model. As stated in the Fourth Schedule, s 3(2), the purpose of the NCMP scheme is to have Members of Parliament, hailing from select fields and professions, who can “reflect as wide a range of independent and non-partisan views as possible”. This means that, unlike NCMPs, NMPs are to contribute apolitical voices in Parliament.

Though NMPs as a component of Parliament may in effect be insignificant as a check on the executive, they could present alternative viewpoints which the Government may consider and even choose to respond to, particularly where they concern socially significant factors. As said by NMP Associate Professor Paulin Tay Straughan, “The day when we move into a two-party system where opposing voices are more visible, we will not need NMPs or NCMPs anymore. But until we get there, the NMPs have a role to play.”

Judicial checks on the legislature and executive in Singapore
It is said by the High Court, in Law Society of Singapore v. Tan Guat Neo Phyllis, that to prevent each arm of government from acting beyond its constitutional powers, “[u]nder the Constitution, the means adopted and recognised by all three arms of government is the judicial power of the court to review the legality of legislative and executive acts and declare them unconstitutional and of no legal effect if they contravene the provisions of the Constitution.” This describes the guardianship role of the judiciary in safeguarding the Constitution and the doctrine of separation of powers.

Judicial review of primary legislation
As stated in Mohammad Faizal bin Sabtu v. Public Prosecutor, the doctrine of separation of powers “entails, in so far as the judicial branch is concerned, that the legislative and the executive branches of the State may not interfere with the exercise of the judicial power by the judicial branch. This total separation between the exercise of the judicial power on the one hand and the exercise of the legislative and the executive powers on the other hand is based on the rule of law.” In Singapore, the upper judiciary acts as an institutional check through its inherent power to declare judicial review as within its jurisdiction. Sir Edward Coke expounds on this facet of judicial power in Dr. Bonham’s Case:

""… in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void; for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void...some statutes are made against law and right, which those who made them perceiving would not put them in execution.""

As such, the Supreme Court upholds the separation of powers and constitutional supremacy by exercising its powers of judicial review of primary legislation, and thereby checking on the legislature. It must ensure that all forms of legislation are constitutional. This is especially important in Singapore where Parliament and the Parliamentary Cabinet are ‘fused’, to prevent subordination of the judiciary to the executive.

Further, Art 100 provides for an ad hoc Constitutional Tribunal to be convened by the President, in accordance with the advice of the Cabinet. The Tribunal is to consist of not less than 3 Supreme Court Judges to make pronouncements on questions pertaining to the Constitution. Chan Sek Keong CJ expressed extra-judicially that the Article was enacted only for the purposes of resolving actual and potential disputes between constitutional organs. However, in Tan Eng Hong v Attorney-General, the Court of Appeal held that the findings of the Constitutional Tribunal are not binding on the Government.

Judicial review of administrative action
Judicial review jurisdiction has been asserted in several Singapore cases and must be grounded in Article 93. The High Court in Chan Hiang Leng Colin v. Public Prosecutor held that it had “the power and duty to ensure that the provisions of the Constitution are observed. The court also has a duty to declare invalid any exercise of power, legislative and executive, which exceeds the limits of the power conferred by the Constitution, or which contravenes any prohibition which the Constitution provides.” It is thus accepted that courts are empowered to strike down unconstitutional laws, as well as hold administrative acts invalid, embodying the doctrine of separation of powers, though the former has yet to happen.

Constitutional or legislative prohibition
The judicial challenge of the constitutionality of amendments made to the Internal Security Act are precluded. Further, judicial review may be statute be ousted or severely restricted through limitation clauses.

While the judiciary is empowered to declare the unconstitutionality of legislation, the legislature is able to overrule such decision by amending the law or the Constitution. This is especially so when Parliament is subject to majority rule. For example, The Court of Appeal in Chng Suan Tze v. Minister for Home Affairs adopted an objective test of review of ministerial discretion in the issuance of preventive detention orders. However, within a month of the decision, the case was followed by amendments by Parliament to the Constitution and the Internal Security Act in 1989 which purported to return to a subjective test of review as espoused in Lee Mau Seng v. Minister for Home Affairs.

This form of legislative overruling, if done frequently, has two major detrimental effects. Firstly, if the legislature or executive is seen as being able to manipulate the constitutional limits on their powers, this would greatly impair judicial independence. Secondly, it may thwart the perception that the judiciary is a co-equal institution in the scheme of the separation of powers, thus causing a loss of respect and public confidence in the system. In this case, Quoting Lord Diplock, Professor S. Jayakumar, Minister of Law then, justified this truncation of judicial review on the basis that national security is “the responsibility of the executive government”, and it is a non-justiciable question which “the judicial process is totally inepty to deal with”. He stated that the Executive would be accountable to both Parliament and the people for its exercise of discretionary powers.

However, it remains an open question whether ouster or limitation clauses may be challenged on the approach set out in Anisminic v. Foreign Compensation Commission. Chan Sek Keong CJ provided an extra-judicial academic argument that any ouster clauses attempting to oust the supervisory jurisdiction of the courts may contravene Article 93, which vests the judicial power of Singapore in the Supreme Court..

Doctrine of non-justiciability
The courts have developed an internal doctrine of self-imposed judicial restraint by which they will either decline to review what they consider a non-justiciable issue, or calibrate review to a low intensity or exercise review of limited grounds.

In matters pertaining to “high policy” such as treaty-making, national defence and foreign relations, the courts will generally decline judicial review of related prerogative powers in deference to the executive. This doctrine stems from the idea that there are cases dealing with a subject matter which falls beyond the purview of judicial review. The court’s decision to intervene or not would be guided by the following four principles as enunciated by Menon JC in Lee Hsien Loong v. Review Publishing Co Ltd:


 * 1) Justiciability depends, not on the source of the decision-making power, but on the subject matter that is in question. Where it is the executive that has access to the best materials available to resolve the issue, its views should be regarded as highly persuasive, if not decisive.
 * 2) Where the decision involves matters of government policy and requires the intricate balancing of various competing policy considerations that judges are ill-equipped to adjudicate because of their limited training, experience and access to materials, the courts should shy away from reviewing its merits.
 * 3) Where a judicial pronouncement could embarrass some other branch of government or tie its hands in the conduct of affairs traditionally regarded as falling within its purview, the courts should abstain.
 * 4) In all cases of judicial review, the court should exercise restraint and take cognisance of the fact that our system of government operates within the framework of three co-equal branches. Even though all exercise of power must be within constitutional and legal bounds, there are areas of prerogative power that the democratically elected Executive and Legislature are entrusted to take charge of, and, in this regard, it is to the electorate, and not the Judiciary, that the Executive and Legislature are ultimately accountable.

However, raising issues in areas of high policy, such as national security, would not automatically apply as a “plea in bar”, as stated by the Court of Appeal in Chng Suan Tze. On scrutiny of such cases which are prima facie non-justiciable, the courts may be able to glean a question of law that is justiciable.

Prosecutorial discretion and the separation of powers under the Constitution
While Article 93 vests judicial power in the courts, Article 35(8) provides that “[t]he Attorney-General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence.”

In Tan Guat Neo Phyllis, the High Court stated that these two provisions expressly separate the prosecutorial function from the judicial function, and that they are coequal. As such, the two functions are not to encroach upon each other, although the court may interfere where that the exercise of prosecutorial power is unconstitutional.