Constitution of the Republic of Singapore Tribunal
Encyclopedia
The Constitution of the Republic of Singapore Tribunal was established in 1994 pursuant to Article 100 of the Constitution of the Republic of Singapore
. Article 100 provides a mechanism for the President of Singapore
, acting on the advice of the Singapore Cabinet
, to refer to the Tribunal for its opinion any question as to the effect of any provision of the Constitution which has arisen or appears to likely to arise. Questions referred to the Tribunal may concern the validity of enacted laws or of bills that have not yet been passed by Parliament.
Constitutional questions may also be referred to the Tribunal when Parliament attempts to circumvent or curtail the discretionary powers conferred on the President by the Constitution. If the attempt is by way of an ordinary bill, the President can exercise personal discretion to withhold assent to it. It is then open to Cabinet to advise the President to refer to the Tribunal the question whether the bill in fact circumvents or curtails his discretionary powers. If the bill is determined by the Tribunal not to have that effect, the President is deemed to have assented to the bill on the day following the day when the Tribunal's opinion is pronounced in open court. When Article 5A of the Constitution is brought into force, a similar procedure will apply to attempts to circumvent or curtail the President's discretionary powers through a constitutional amendment. If the Tribunal rules that the proposed amendment does have the effect of restricting the discretionary powers of the President, the Prime Minister is entitled to submit the bill to a national referendum
for approval.
The Tribunal consists of not less than three judges
of the Supreme Court. Its opinions are binding on all other courts. Since the Tribunal was established in 1994, to date only one constitutional question has been referred to it. The Tribunal determined in 1995 that although Article 5(2A) was not in force, Article 22H(1) did not prevent Parliament from restricting the President's discretionary powers through a constitutional amendment. Since then, there have been several unsuccessful attempts to persuade Cabinet to invoke the Article 100 procedure.
tribunal
established by Article 100 of the Constitution of the Republic of Singapore
. Article 100 was introduced into the Constitution by the Constitution of the Republic of Singapore (Amendment No. 2) Act 1994, which was passed by Parliament
on 25 August 1994 and assented to by President
Ong Teng Cheong
on 14 September 1994. It came into force on 1 October 1994.
Prior to the enactment of Article 100, Deputy Prime Minister
Lee Hsien Loong
noted during the Second Reading of the Constitution of the Republic of Singapore (Amendment No. 2) Bill that the Singapore Constitution had no provisions for referring questions of constitutional interpretation to the courts for an advisory ruling
, especially those relating to new and complex provisions of the Constitution. Article 100 was intended to address this perceived lacuna
in the Constitution.
One question of constitutional interpretation that was highlighted during the parliamentary debates pertained to the former Article 22H which had been incorrectly inserted into the Constitution by the Constitution (Amendment) Act 1991 in January 1991. Article 22H(1) provided that the President might, acting in his discretion, withhold his assent to any bill passed by Parliament (other than a bill to which Article 5(2A) applied) if the bill provided for the circumvention or curtailment of the discretionary powers conferred upon him by the Constitution. At that time, Article 5(2A), which entrenched certain core constitutional provisions (of which Article 22H(1) was one) by requiring the approval of the electorate at a national referendum
for their amendment, had not been brought into force.
In August 1994, Parliament intended to amend Article 22H to restrict the President's powers thereunder to only non-constitutional bills which provided for the circumvention or curtailment of the President's discretionary powers conferred upon him by the Constitution. Because Article 5(2A) was not in force, a question arose as to whether the President had the power under Article 22H(1) to withhold his assent to any bill seeking to amend any of the provisions referred to in Article 5(2A), and specifically to any bill seeking to amend Article 22H. President Ong Teng Cheong stated that in the interest of testing out the system, he wished to have this question referred to the courts for a ruling, and that he would accept as correct whatever interpretation of Article 22H was given by the court. In response to his request, Article 100 was inserted into the Constitution by Parliament for that purpose.
Associate Professor Walter Woon posed the following question:
The reply by the Deputy Prime Minister Lee Hsien Loong was threefold:
Questions referred to the Tribunal may concern the validity of enacted laws or of bills that have not yet been passed by Parliament.
The other two grounds relate to attempts by Parliament to circumvent or curtail the discretionary powers conferred on the President by the Constitution. Article 22H of the Constitution deals with attempts to alter the President's powers by introducing an ordinary bill. If this occurs, the President may exercise personal discretion to withhold assent to the bill. The Cabinet may, if it wishes, advise the President to refer to the Tribunal the question whether the bill in fact has the effect of circumventing or curtailing his discretionary powers. If the Tribunal determines that the bill does not have that effect, the President is deemed to have assented to the bill on the day following the day when the Tribunal's opinion is pronounced in open court
.
When Article 5A is brought into force, the President will also be able to decline to assent to a bill seeking to amend the Constitution that has a direct or indirect effect of circumventing or curtailing his discretionary powers. In this case, the Cabinet may also advise the President to refer to the Tribunal the question of whether the bill indeed has this effect. If the Tribunal rules that the bill does not have this effect, the President is deemed to have assented to the bill on the day immediately following the day when the Tribunal pronounces its opinion in open court. On the other hand, if the Tribunal decides to the contrary, the Prime Minister may opt to submit the bill to the electorate. If the bill is supported at a national referendum by not less than two-thirds of the total number of votes cast, the President is deemed to have assented to the bill on the day immediately following the day when the results of the referendum have been published in the Government Gazette.
. The Attorney-General is required to assist the Tribunal in the hearing of the reference, and the President may be represented by such legal counsel as the Tribunal may appoint, after consulting the President. The parties appearing before the Tribunal are not confined to the President and the Attorney-General. The Tribunal may direct that the hearing of a reference be notified to any interested person or, where there is an interested class of persons, to one or more representatives of the class. If there is any interest that is affected which is not represented by counsel, the Tribunal may request that counsel argue the case for this interest.
The reference must state the questions on which the Tribunal's opinion is required in a form which allows, as far as possible, answers to be given in the affirmative or the negative. There must also be a concise statement of facts, and documents must be included, as are necessary to enable the Tribunal to decide the questions referred. During the hearing of a reference, the procedure in proceedings before the Court of Appeal
applies. The President of Singapore is treated as the appellant and all other parties as respondents. However, the Tribunal is not bound by strict rules of evidence. The proceedings of the Tribunal, except for the hearing for directions, are held in open court. No party to any proceedings is ordered to pay any costs, and no court fees are payable in respect of any proceedings.
The Tribunal has to consider and answer a question referred to it not more than 60 days after the date of such reference. The Tribunal is mandated to certify to the President for his information its opinion on the question referred to it with reasons for its answer, and any Tribunal judge who differs from the opinion of the majority shall similarly certify his opinion and his reasons. The opinion of the majority of judges is the opinion of the Tribunal, and is required to be pronounced in open court.
of the Supreme Court, as Parliament intended that the Tribunal should have the same structure as the Court of Appeal. In practice, the Tribunal consists of the Chief Justice
and not less than two other judges of the Supreme Court as the Chief Justice may determine. If for any reason the Chief Justice is unable to be a Tribunal member, the Tribunal must consist of not less than three Supreme Court judges. The Chief Justice is the President of the Tribunal and, in his absence, the presidency of the Tribunal is determined in accordance with the following order of precedence:
Among themselves, the judges in each category rank according to the priority of their appointments to the Bench
.
was represented by Chan Sek Keong
and Soh Tze Bian of the Attorney-General's Chambers
, and the Presidency by Joseph Grimberg and Walter Woon.
The Constitutional Tribunal, which consisted of the Chief Justice Yong Pung How
and Judges of Appeal M. Karthigesu and L.P. Thean, held that although Article 5(2A) was in abeyance, it represented the will of Parliament and therefore had to be taken into consideration. The Tribunal concluded that the President had no power under Article 22H(1) to withhold his assent to any bill seeking to amend any of the provisions referred to in Article 5(2A).
Joshua Benjamin Jeyaretnam
. He challenged the constitutionality of Singapore's US$5 billion loan offer to Indonesia in November 1997 on the basis of Article 144(1) of the Constitution which states: "No guarantee or loan shall be given or raised by the Government, except under the authority of any resolution of Parliament with which the President concurs." Jeyaretnam interpreted this to mean that the giving of a loan required parliamentary and presidential approval. The Finance Minister
Dr. Richard Hu Tsu Tau
did not agree with Jeyaretnam's interpretation of the provision, and stated that the Attorney-General had given advice that the granting of loans and the purchase of securities of this type had the prior approval of two Presidents.
Subsequently, the Ministry of Finance stated that Article 144(1) applied only to the giving of guarantees or the raising of loans by the Government, and not the giving of loans. The Attorney-General Chan Sek Keong
confirmed that this reading of the provision, which he characterized as reddendo singula singulis (Latin for "referring each to each"), was correct. The Attorney-General also suggested that Jeyaretnam bring the matter to the Tribunal, a procedure seemingly inconsistent with a rule which stipulates that a reference to the Tribunal shall be made under the hand of the President of Singapore. This issue was finally abandoned when Jeyaretnam refused to pay for the costs for referring the matter to the Tribunal and the Ministry of Law
found it ludicrous that it was asked by Jeyaretnam to bear the costs.
, who had been charged for giving a public talk on 20 December 1999 without a licence under the Public Entertainments Act. The question involved the constitutionality of the Act. Jeyaretnam argued that the Act violated Articles 14(1)(a) and (b) of the Constitution, which enshrines freedom of speech and assembly.
The President, acting on the advice of the Cabinet, turned down the request. The reply to Jeyaretnam dated 29 January 1999 pronounced the request as "misconceived". The following reasons were given:
of drug trafficker Shanmugam Murugesu
. Shanmugam's lawyer contended that his client's right to equal protection under Article 12 of the Constitution had been infringed. Referring to cases of six recent offenders similarly convicted under the Misuse of Drugs Act
, Shanmugam's lawyer drew attention to the fact that those offenders had imported more than 700 gram
mes of cannabis, an offence which attracted the death penalty, but were eventually charged with possessing less than 500 grammes of cannabis which resulted only in a jail sentence. In contrast, Shanmugam, who had imported 1,029.8 grammes of cannabis, did not have the amount reduced and was sentenced to death. The plea was rejected by the President on 12 May 2005, one day before the execution date.
Thio Li-ann
posed the question of whether the right to vote is a constitutional one and suggested that the Law Minister
obtain an advisory opinion to clarify the point. This issue was briefly dealt with by the Minister who simply answered it in the affirmative, rendering the need for a resolution by the constitutional tribunal nugatory. Thio subsequently expressed the view that it would be desirable to ask the Constitutional Tribunal to give its authoritative opinion as the courts are the final arbiter on questions of constitutionality in Singapore.
Constitution of Singapore
The Constitution of Singapore is the supreme law of Singapore and it is a codified constitution.The constitution cannot be amended without the support of more than two-thirds of the members of parliament on the second and third readings . The president may seek opinion on constitutional issues...
. Article 100 provides a mechanism for the President of Singapore
President of Singapore
The President of the Republic of Singapore is Singapore's head of state. In a Westminster parliamentary system, as which Singapore governs itself, the prime minister is the head of the government while the position of president is largely ceremonial. Before 1993, the President of Singapore was...
, acting on the advice of the Singapore Cabinet
Cabinet of Singapore
The Cabinet of Singapore forms the Government of Singapore together with the President of Singapore. It is led by the Prime Minister of Singapore who is the head of government...
, to refer to the Tribunal for its opinion any question as to the effect of any provision of the Constitution which has arisen or appears to likely to arise. Questions referred to the Tribunal may concern the validity of enacted laws or of bills that have not yet been passed by Parliament.
Constitutional questions may also be referred to the Tribunal when Parliament attempts to circumvent or curtail the discretionary powers conferred on the President by the Constitution. If the attempt is by way of an ordinary bill, the President can exercise personal discretion to withhold assent to it. It is then open to Cabinet to advise the President to refer to the Tribunal the question whether the bill in fact circumvents or curtails his discretionary powers. If the bill is determined by the Tribunal not to have that effect, the President is deemed to have assented to the bill on the day following the day when the Tribunal's opinion is pronounced in open court. When Article 5A of the Constitution is brought into force, a similar procedure will apply to attempts to circumvent or curtail the President's discretionary powers through a constitutional amendment. If the Tribunal rules that the proposed amendment does have the effect of restricting the discretionary powers of the President, the Prime Minister is entitled to submit the bill to a national referendum
Referendum
A referendum is a direct vote in which an entire electorate is asked to either accept or reject a particular proposal. This may result in the adoption of a new constitution, a constitutional amendment, a law, the recall of an elected official or simply a specific government policy. It is a form of...
for approval.
The Tribunal consists of not less than three judges
Judicial officers of the Republic of Singapore
The judicial officers of the Republic of Singapore work in the Supreme Court and the Subordinate Courts to hear and determine disputes between litigants in civil cases and, in criminal matters, to determine the liability of accused persons and their sentences if they are convicted.In the Supreme...
of the Supreme Court. Its opinions are binding on all other courts. Since the Tribunal was established in 1994, to date only one constitutional question has been referred to it. The Tribunal determined in 1995 that although Article 5(2A) was not in force, Article 22H(1) did not prevent Parliament from restricting the President's discretionary powers through a constitutional amendment. Since then, there have been several unsuccessful attempts to persuade Cabinet to invoke the Article 100 procedure.
History
The Constitution of the Republic of Singapore Tribunal is an ad hocAd hoc
Ad hoc is a Latin phrase meaning "for this". It generally signifies a solution designed for a specific problem or task, non-generalizable, and not intended to be able to be adapted to other purposes. Compare A priori....
tribunal
Tribunal
A tribunal in the general sense is any person or institution with the authority to judge, adjudicate on, or determine claims or disputes—whether or not it is called a tribunal in its title....
established by Article 100 of the Constitution of the Republic of Singapore
Constitution of Singapore
The Constitution of Singapore is the supreme law of Singapore and it is a codified constitution.The constitution cannot be amended without the support of more than two-thirds of the members of parliament on the second and third readings . The president may seek opinion on constitutional issues...
. Article 100 was introduced into the Constitution by the Constitution of the Republic of Singapore (Amendment No. 2) Act 1994, which was passed by Parliament
Parliament of Singapore
The Parliament of the Republic of Singapore and the President jointly make up the legislature of Singapore. Parliament is unicameral and is made up of Members of Parliament who are elected, as well as Non-constituency Members of Parliament and Nominated Members of Parliament who are appointed...
on 25 August 1994 and assented to by President
President of Singapore
The President of the Republic of Singapore is Singapore's head of state. In a Westminster parliamentary system, as which Singapore governs itself, the prime minister is the head of the government while the position of president is largely ceremonial. Before 1993, the President of Singapore was...
Ong Teng Cheong
Ong Teng Cheong
Ong Teng Cheong was the first directly elected President of the Republic of Singapore. He was the nation's fifth President, and served a six-year term from 1 September 1993 to 31 August 1999.-Early life:...
on 14 September 1994. It came into force on 1 October 1994.
Prior to the enactment of Article 100, Deputy Prime Minister
Prime Minister of Singapore
The Prime Minister of the Republic of Singapore is the head of the government of the Republic of Singapore. The President of Singapore appoints as Prime Minister a Member of Parliament who, in his opinion, is most likely to command the confidence of a majority of MPs.The office of Prime Minister...
Lee Hsien Loong
Lee Hsien Loong
Lee Hsien Loong is the third and current Prime Minister of Singapore. He is married to Ho Ching, who is the Executive Director and Chief Executive Officer of Temasek Holdings. He is the eldest son of Singapore's first Prime Minister Lee Kuan Yew....
noted during the Second Reading of the Constitution of the Republic of Singapore (Amendment No. 2) Bill that the Singapore Constitution had no provisions for referring questions of constitutional interpretation to the courts for an advisory ruling
Advisory opinion
An advisory opinion is an opinion issued by a court that does not have the effect of adjudicating a specific legal case, but merely advises on the constitutionality or interpretation of a law. Some countries have procedures by which the executive or legislative branches may certify important...
, especially those relating to new and complex provisions of the Constitution. Article 100 was intended to address this perceived lacuna
Non liquet
In law, a non liquet is a situation where there is no applicable law. Non liquet translates into English from Latin as "it is not clear." According to Cicero, the term was applied during the Roman Republic to a verdict of "not proven" where the guilt or innocence of the accused was "not clear." ...
in the Constitution.
One question of constitutional interpretation that was highlighted during the parliamentary debates pertained to the former Article 22H which had been incorrectly inserted into the Constitution by the Constitution (Amendment) Act 1991 in January 1991. Article 22H(1) provided that the President might, acting in his discretion, withhold his assent to any bill passed by Parliament (other than a bill to which Article 5(2A) applied) if the bill provided for the circumvention or curtailment of the discretionary powers conferred upon him by the Constitution. At that time, Article 5(2A), which entrenched certain core constitutional provisions (of which Article 22H(1) was one) by requiring the approval of the electorate at a national referendum
Referendum
A referendum is a direct vote in which an entire electorate is asked to either accept or reject a particular proposal. This may result in the adoption of a new constitution, a constitutional amendment, a law, the recall of an elected official or simply a specific government policy. It is a form of...
for their amendment, had not been brought into force.
In August 1994, Parliament intended to amend Article 22H to restrict the President's powers thereunder to only non-constitutional bills which provided for the circumvention or curtailment of the President's discretionary powers conferred upon him by the Constitution. Because Article 5(2A) was not in force, a question arose as to whether the President had the power under Article 22H(1) to withhold his assent to any bill seeking to amend any of the provisions referred to in Article 5(2A), and specifically to any bill seeking to amend Article 22H. President Ong Teng Cheong stated that in the interest of testing out the system, he wished to have this question referred to the courts for a ruling, and that he would accept as correct whatever interpretation of Article 22H was given by the court. In response to his request, Article 100 was inserted into the Constitution by Parliament for that purpose.
Grounds for bringing of reference
A constitutional question can be referred to the Tribunal on three grounds. First, under Article 100 itself, the President, acting on the advice of Cabinet, may refer to the Tribunal for its opinion any question as to the effect of any provision of the Constitution which has arisen or appears to the President likely to arise. During the parliamentary debates preceding the introduction of Article 100, Nominated Member of ParliamentNominated Member of Parliament
A Nominated Member of Parliament is a Member of the Parliament of Singapore who is appointed instead of being elected into office by the people, and who does not belong to any political party or represent any constituency. There are currently nine NMPs in Parliament...
Associate Professor Walter Woon posed the following question:
The reply by the Deputy Prime Minister Lee Hsien Loong was threefold:
- Article 100 was drafted by following the precedent in the Constitution of MalaysiaConstitution of MalaysiaThe Federal Constitution of Malaysia, which came into force in 1957, is the supreme law of Malaysia. The Federation was initially called the Federation of Malaya and it adopted its present name, Malaysia, when the States of Sabah, Sarawak and Singapore joined the Federation...
. Since it had worked for Malaysia, the drafters thought it safe for Singapore to follow suit. - It was the intention of legislation concerning the elected President that the initiative to refer the question to the Tribunal should lie with the Government, and generally not with the President whose recourse was in vetoing the legislation. The Cabinet would advise the President and the matter would then be referred to the Tribunal.
- In the event of Cabinet wishing to ride roughshod over the President's views and refusing to refer a particular matter, there would be considerable public pressure exerted on the Government to so refer.
Questions referred to the Tribunal may concern the validity of enacted laws or of bills that have not yet been passed by Parliament.
The other two grounds relate to attempts by Parliament to circumvent or curtail the discretionary powers conferred on the President by the Constitution. Article 22H of the Constitution deals with attempts to alter the President's powers by introducing an ordinary bill. If this occurs, the President may exercise personal discretion to withhold assent to the bill. The Cabinet may, if it wishes, advise the President to refer to the Tribunal the question whether the bill in fact has the effect of circumventing or curtailing his discretionary powers. If the Tribunal determines that the bill does not have that effect, the President is deemed to have assented to the bill on the day following the day when the Tribunal's opinion is pronounced in open court
In open court
In open court is a legal term in the United States defined by the appearance by a party or their attorney in a public court session such as during a trial...
.
When Article 5A is brought into force, the President will also be able to decline to assent to a bill seeking to amend the Constitution that has a direct or indirect effect of circumventing or curtailing his discretionary powers. In this case, the Cabinet may also advise the President to refer to the Tribunal the question of whether the bill indeed has this effect. If the Tribunal rules that the bill does not have this effect, the President is deemed to have assented to the bill on the day immediately following the day when the Tribunal pronounces its opinion in open court. On the other hand, if the Tribunal decides to the contrary, the Prime Minister may opt to submit the bill to the electorate. If the bill is supported at a national referendum by not less than two-thirds of the total number of votes cast, the President is deemed to have assented to the bill on the day immediately following the day when the results of the referendum have been published in the Government Gazette.
Procedure
A reference must be made under the hand of (that is, signed by) the President, and must be served on the Attorney-GeneralAttorney-General of Singapore
The Attorney-General of Singapore is the legal adviser to the government of the Republic of Singapore and its public prosecutor.The office was founded in 1867 as the chief legal officer of the British crown colony of the Straits Settlements. The current requirements for appointment as...
. The Attorney-General is required to assist the Tribunal in the hearing of the reference, and the President may be represented by such legal counsel as the Tribunal may appoint, after consulting the President. The parties appearing before the Tribunal are not confined to the President and the Attorney-General. The Tribunal may direct that the hearing of a reference be notified to any interested person or, where there is an interested class of persons, to one or more representatives of the class. If there is any interest that is affected which is not represented by counsel, the Tribunal may request that counsel argue the case for this interest.
The reference must state the questions on which the Tribunal's opinion is required in a form which allows, as far as possible, answers to be given in the affirmative or the negative. There must also be a concise statement of facts, and documents must be included, as are necessary to enable the Tribunal to decide the questions referred. During the hearing of a reference, the procedure in proceedings before the Court of Appeal
Court of Appeal of Singapore
The Court of Appeal of the Republic of Singapore is the nation's highest court and its court of final appeal. It is the upper division of the Supreme Court of Singapore, the lower being the High Court. The Court of Appeal consists of the Chief Justice of Singapore, who is the President of the...
applies. The President of Singapore is treated as the appellant and all other parties as respondents. However, the Tribunal is not bound by strict rules of evidence. The proceedings of the Tribunal, except for the hearing for directions, are held in open court. No party to any proceedings is ordered to pay any costs, and no court fees are payable in respect of any proceedings.
The Tribunal has to consider and answer a question referred to it not more than 60 days after the date of such reference. The Tribunal is mandated to certify to the President for his information its opinion on the question referred to it with reasons for its answer, and any Tribunal judge who differs from the opinion of the majority shall similarly certify his opinion and his reasons. The opinion of the majority of judges is the opinion of the Tribunal, and is required to be pronounced in open court.
Composition
The Constitution provides that the Tribunal must consist of not less than three judgesJudicial officers of the Republic of Singapore
The judicial officers of the Republic of Singapore work in the Supreme Court and the Subordinate Courts to hear and determine disputes between litigants in civil cases and, in criminal matters, to determine the liability of accused persons and their sentences if they are convicted.In the Supreme...
of the Supreme Court, as Parliament intended that the Tribunal should have the same structure as the Court of Appeal. In practice, the Tribunal consists of the Chief Justice
Chief Justice of Singapore
The Chief Justice of Singapore is the highest post in the judicial system of Singapore. The Chief Justice is appointed by the President, chosen from candidates recommended by the Prime Minister. The present Chief Justice is Chan Sek Keong....
and not less than two other judges of the Supreme Court as the Chief Justice may determine. If for any reason the Chief Justice is unable to be a Tribunal member, the Tribunal must consist of not less than three Supreme Court judges. The Chief Justice is the President of the Tribunal and, in his absence, the presidency of the Tribunal is determined in accordance with the following order of precedence:
- the vice-presidents of the Court of Appeal;
- the Judges of Appeal (other than vice-presidents); and
- the Judges of the High CourtHigh Court of SingaporeThe High Court of the Republic of Singapore is the lower division of the Supreme Court of Singapore, the upper being the Court of Appeal. It consists of the Chief Justice of Singapore and the Judges of the High Court. Judicial Commissioners are often appointed to assist with the Court's caseload...
.
Among themselves, the judges in each category rank according to the priority of their appointments to the Bench
Bench (law)
Bench in legal contexts means simply the location in a courtroom where a judge sits. The historical roots of that meaning come from the fact that judges formerly sat on long seats or benches when presiding over a court...
.
Effect of opinions
Opinions of the Tribunal cannot be questioned by any court. This includes the Tribunal's view of the validity of any law, the bill of which has been the subject of a reference to a Tribunal. This means that although the Tribunal lies outside the normal hierarchy of the courts since it does not hear appeals from any courts, its opinions are binding on all other courts. It is technically open for the President, on Cabinet's advice, to refer the same matter to the Tribunal for its re-consideration.Constitutional Reference No. 1 of 1995
Since the creation of the Tribunal in 1994, only one constitutional reference has been made to it. Constitutional Reference No. 1 of 1995 arose from the issue of the application of Article 22H(1) of the Constitution in relation to Article 5(2A), which was and is still not yet in force. The matter was referred by President Ong Teng Cheong to clarify the scope of the application of both Articles. The GovernmentGovernment of Singapore
The Government of Singapore is defined by the Constitution of the Republic of Singapore to mean the Executive branch of government, which is made up of the President and the Cabinet of Singapore. Although the President acts in his personal discretion in the exercise of certain functions as a check...
was represented by Chan Sek Keong
Chan Sek Keong
Chan Sek Keong is the current Chief Justice of Singapore, having taken over from the former Chief Justice Yong Pung How on 11 April 2006. Chan was formerly the Attorney-General of Singapore, before being succeeded by Chao Hick Tin on 11 April 2006....
and Soh Tze Bian of the Attorney-General's Chambers
Attorney-General of Singapore
The Attorney-General of Singapore is the legal adviser to the government of the Republic of Singapore and its public prosecutor.The office was founded in 1867 as the chief legal officer of the British crown colony of the Straits Settlements. The current requirements for appointment as...
, and the Presidency by Joseph Grimberg and Walter Woon.
The Constitutional Tribunal, which consisted of the Chief Justice Yong Pung How
Yong Pung How
Yong Pung How, DUT . He was the former Chief Justice of Singapore, serving from 1990 to 2006. Prior to his judicial career, he was a lawyer, banker and senior government official...
and Judges of Appeal M. Karthigesu and L.P. Thean, held that although Article 5(2A) was in abeyance, it represented the will of Parliament and therefore had to be taken into consideration. The Tribunal concluded that the President had no power under Article 22H(1) to withhold his assent to any bill seeking to amend any of the provisions referred to in Article 5(2A).
Rescue and assistance package for Indonesia
The first instance of a non-governmental attempt to put an issue before the Constitutional Tribunal came from Non-constituency Member of ParliamentNon-Constituency Member of Parliament
Non-Constituency Members of Parliament are members of the opposition parties who are appointed as members of the Parliament of Singapore even though they had lost in the parliamentary election....
Joshua Benjamin Jeyaretnam
Joshua Benjamin Jeyaretnam
Joshua Benjamin Jeyaretnam was a politician and lawyer from Singapore. He was the leader of the Workers' Party from 1971 to 2001...
. He challenged the constitutionality of Singapore's US$5 billion loan offer to Indonesia in November 1997 on the basis of Article 144(1) of the Constitution which states: "No guarantee or loan shall be given or raised by the Government, except under the authority of any resolution of Parliament with which the President concurs." Jeyaretnam interpreted this to mean that the giving of a loan required parliamentary and presidential approval. The Finance Minister
Ministry of Finance (Singapore)
The Ministry of Finance , is a ministry of the Government of Singapore responsible for administering and regulating financial institutions and structures of the economy of Singapore. It is headed by the Minister for Finance...
Dr. Richard Hu Tsu Tau
Hu Tsu Tau Richard
Richard Hu Tsu Tau is a former Singaporean politician. He served as Minister of Finance from 1985–2001 and is affiliated to the People's Action Party...
did not agree with Jeyaretnam's interpretation of the provision, and stated that the Attorney-General had given advice that the granting of loans and the purchase of securities of this type had the prior approval of two Presidents.
Subsequently, the Ministry of Finance stated that Article 144(1) applied only to the giving of guarantees or the raising of loans by the Government, and not the giving of loans. The Attorney-General Chan Sek Keong
Chan Sek Keong
Chan Sek Keong is the current Chief Justice of Singapore, having taken over from the former Chief Justice Yong Pung How on 11 April 2006. Chan was formerly the Attorney-General of Singapore, before being succeeded by Chao Hick Tin on 11 April 2006....
confirmed that this reading of the provision, which he characterized as reddendo singula singulis (Latin for "referring each to each"), was correct. The Attorney-General also suggested that Jeyaretnam bring the matter to the Tribunal, a procedure seemingly inconsistent with a rule which stipulates that a reference to the Tribunal shall be made under the hand of the President of Singapore. This issue was finally abandoned when Jeyaretnam refused to pay for the costs for referring the matter to the Tribunal and the Ministry of Law
Ministry of Law (Singapore)
The Ministry of Law is a ministry of the Government of Singapore responsible for ensuring that Singapore's legal infrastructure is clear, efficacious and transparent...
found it ludicrous that it was asked by Jeyaretnam to bear the costs.
Public Entertainments Act
On 20 January 1999, Jeyaretnam wrote to President Ong Teng Cheong requesting the reference of another constitutional question to the Tribunal. This was made on behalf of his client, opposition politician Chee Soon JuanChee Soon Juan
Chee Soon Juan, PhD is a politician and political activist from Singapore. He is currently the leader of the opposition Singapore Democratic Party ....
, who had been charged for giving a public talk on 20 December 1999 without a licence under the Public Entertainments Act. The question involved the constitutionality of the Act. Jeyaretnam argued that the Act violated Articles 14(1)(a) and (b) of the Constitution, which enshrines freedom of speech and assembly.
The President, acting on the advice of the Cabinet, turned down the request. The reply to Jeyaretnam dated 29 January 1999 pronounced the request as "misconceived". The following reasons were given:
- The jurisdiction of the Tribunal should only be invoked "when there is no other forum available to a person who claims that his constitutional rights have been infringed to have such claim tested". The Tribunal was not a court of law, but only advisory in nature. Chee would be able to raise the same constitutional question at trial or on appeal as he had been charged under the Act.
- If the Tribunal were to come into the picture when the court had yet to resolve the matter, then this would "constitute an improper interference with the judicial power of the courts and the constitutional functions of the Public Prosecutor".
Misuse of Drugs Act
A plea for a review by the Constitutional Tribunal was sought as a last-ditch attempt to stave off the executionCapital punishment in Singapore
Capital punishment is a legal form of punishment in Singapore. The city-state had the highest per-capita execution rate in the world between 1994 and 1999, estimated by the United Nations to be 1.357 executions per hundred thousand of population during that period. The next highest was Turkmenistan...
of drug trafficker Shanmugam Murugesu
Shanmugam Murugesu
Shanmugam "Sam" Murugesu was a Tamil Singaporean executed for smuggling 1.03 kg of cannabis into Singapore from Malaysia...
. Shanmugam's lawyer contended that his client's right to equal protection under Article 12 of the Constitution had been infringed. Referring to cases of six recent offenders similarly convicted under the Misuse of Drugs Act
Misuse of Drugs Act (Singapore)
The Misuse of Drugs Act is a national drug control law classifying substances into three categories, Classes A, B, and C. Section 44 provides that "The Minister may, by an order published in the Gazette" add, remove, or transfer drugs among the classes...
, Shanmugam's lawyer drew attention to the fact that those offenders had imported more than 700 gram
Gram
The gram is a metric system unit of mass....
mes of cannabis, an offence which attracted the death penalty, but were eventually charged with possessing less than 500 grammes of cannabis which resulted only in a jail sentence. In contrast, Shanmugam, who had imported 1,029.8 grammes of cannabis, did not have the amount reduced and was sentenced to death. The plea was rejected by the President on 12 May 2005, one day before the execution date.
Legal status of the right to vote
Speaking in Parliament on 12 February 2009, Nominated Member of ParliamentNominated Member of Parliament
A Nominated Member of Parliament is a Member of the Parliament of Singapore who is appointed instead of being elected into office by the people, and who does not belong to any political party or represent any constituency. There are currently nine NMPs in Parliament...
Thio Li-ann
Thio Li-ann
Thio Li-ann is a Singaporean law professor at the National University of Singapore. She was educated at the University of Oxford, Harvard Law School and the University of Cambridge. In January 2007, she was appointed a Nominated Member of Parliament in Singapore's 11th Parliament.-Early life and...
posed the question of whether the right to vote is a constitutional one and suggested that the Law Minister
Ministry of Law (Singapore)
The Ministry of Law is a ministry of the Government of Singapore responsible for ensuring that Singapore's legal infrastructure is clear, efficacious and transparent...
obtain an advisory opinion to clarify the point. This issue was briefly dealt with by the Minister who simply answered it in the affirmative, rendering the need for a resolution by the constitutional tribunal nugatory. Thio subsequently expressed the view that it would be desirable to ask the Constitutional Tribunal to give its authoritative opinion as the courts are the final arbiter on questions of constitutionality in Singapore.