of the current constitutional position. V. REASONS The Separation of Powers and Parliamentary Supremacy Underlying the unwillingness of the courts to take a more active role as guardians of constitutional values is the judiciary’s respect for the twin principles of the separation of powers and parliamentary supremacy. The courts are quick to rebut the assumption that deference of the courts to the legislature means that the courts are not upholding constitutional values. Instead, it is argued that their decisions are constitutional as the courts are giving effect to the doctrine of the separation of powers. In Phyllis Tan, Chan CJ applied the doctrine by explaining that “both organs have an equal status under the Constitution, and neither may interfere with each other’s functions or intrude into the powers of the other, subject only to the constitutional power of the court to prevent the prosecutorial power from being exercised unconstitutionally.”39 This point was further emphasized in the case of Lim Meng Suang, where the Court ruled that while the submissions were valid in their own right, they involved “extra-legal considerations and matters of social policy which were outside the remit of the court, and should, instead, have been canvassed in the legislative sphere.”40 It does seem that the Court sees its role as only adjudicating on the legality of a decision, instead of taking a substantive conception of what is ‘good’ law. This is further confirmed as the Court in Yong Vui Kong affirmed that it is “obliged to apply domestic laws in the event of any inconsistency with international law norms.”41 Thio Li-Ann and Kevin Tan rightly make the observation that “the courts seem more protective of executive interests than individual freedoms, manifesting a bureaucratic ethos out of joint with judicial impartiality and rights guardianship.”42 This is in line with the current position in the UK, where the traditional role of judges is to interpret the law,43 and also “to ascertain and give effect to the true meaning of what Parliament has said in the enactment to the construed”,44 with the courts having no power to declare of the Singapore Courts’ <https://singaporepubliclaw.com/2015/03/11/ protecting-human-rights-singapore/#n8> accessed 25 July 2016
39
Law Society of Singapore v. Tan Guat Neo Phyllis [2008] 2 SLR 239 [144]
40 41 42 43 44
(n 36) [189] (n 37) [121] (n 33) 218 Duport Steels v. Sirs [1980] 1 WLR 142
R (on the application of Quintavalle) v. Secretary of State for Health [2003] 2 AC 687 [8]
26
invalid enacted laws.45 Yet, similar to Singapore, there have been some judges that have questioned this traditional literal approach, supporting instead the legal constitution. This is most clearly seen in the Jackson case, where Baroness Hale and Lord Hope notably questioned whether parliamentary supremacy was absolute, and instead envisioned a more active role of the courts in “(treating) with particular suspicion46 (and might even reject) any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial scrutiny”. However, judges in the UK are still divided as to the extent of their political role.47 Ultimately, as in both countries, there is no clear consensus as to how far the judiciary has shifted away from its traditional deferential approach, and it is thus unfair to make any preliminary statements that may suggest otherwise. The Singapore Context Many who have analysed the Singapore legal system attribute it the underlying values of the government and society. Discretion must be applied when comparing different legal systems, especially within the unique context of “independent South-East Asian states with their quite different goals and priorities in national development.”48 The local conception of government by honourable men (junzi) was proposed in the government’s Shared Values command paper, where it was posited that “the concept of government by honourable men (junzi), who have a duty to do right for the people, and who have the trust and respect of the population, fits us better than the Western idea that a government should be given as limited powers as possible, and should always be treated with suspicion unless proven otherwise.”49 Thus, with the integrity of government prized, this serves to reinforce the idea that the government is competent and able to act in a constitutional manner.
VI. CONCLUSION On the surface, the Singapore Constitution has not played an active role in courts. However, this might instead be indicative that constitutional values are indeed being applied and thus there is no need to invoke the constitution. Upon closer examination into the workings of the state, it can be seen that the principles of the constitution are underlying and present. Furthermore, the constitution is merely one source of constitutional values, with other values – such as
45 46 47
Pickin v. British Railways Board [1974] UKHL 1 R (Jackson) v. Attornery General [2005] UKHL 56 [159]
Tom Mullen, ‘Reflections on Jackson v. Attorney General: Questioning Sovereignty’ (2007) 27 LS 1-25
48
Christine Chinkin, ‘Abuse of Discretion in Malaysia and Singapore’ in Harding, The Common Law in Singapore and Malaysia (Butterworths 1985, Singapore) 262
49
Singapore Government, Shared Values (White Paper) (Cmd. 1 of 1991) [41]