The Separation of powers in Singapore is governed by Constitution of the Republic of Singapore, which splits the power to govern the country between three branches of government – the parliament, which makes laws; the executive, which executes them; and the judiciary, which enforces them. Each branch, while wielding legitimate power and being protected from external influences, is subject to a system of checks and balances by the other branches to prevent abuse of power. This Westminster constitutional model was inherited from the British during Singapore's colonial years.
The Singapore system of government, as with those of a number of other Commonwealth jurisdictions, exhibits a partial separation of powers. The ministers of the Cabinet, who govern the executive branch of government, are appointed from the Members of Parliament (MPs). The cabinet both comes from and drives the parliament's legislative agenda. In addition, the executive possesses law-making power as it is authorised to issue subsidiary legislation, and the President of Singapore is a member of both the executive and the legislature.
The legislature can exercise checks upon the executive by imposing weak sanctions through the doctrine of individual ministerial responsibility. Cabinet ministers may be called upon to justify their policies in Parliament by elected MPs (backbenchers belonging to the ruling party and opposition MPs), as well as non-elected Members (non-constituency members of parliament (NCMPs) and nominated members of parliament (NMPs)).
The judiciary has the role of safeguarding the constitution, and is able to act as an institutional check through its inherent power to strike down unconstitutional laws. The Supreme Court may also invalidate acts or decisions by the executive which are inconsistent with the Constitution or with administrative law rules. However, judicial power is not unfettered and is also restrained by constitutional and legislative prohibitions. The judiciary also defers to the executive where non-justiciable matters are involved. Judicial independence in Singapore allows the judiciary powers to check the exercise of power by the other branches of government, strengthening the separation of powers. Constitutional safeguards exist to secure the independence of Supreme Court judges, but a point of contention is that State Courts judges do not enjoy security of tenure as they are members of the Singapore Legal Service and may be transferred out of the State Courts to other departments of the Service by the Legal Service Commission.
The separation of powers in Singapore is also enhanced by intra-branch checking mechanisms. Within the executive, the elected president adds to the overall scheme of checks and balances through his discretionary power to block certain government actions. However, the presence of an override mechanism wielded by Parliament blunts the office's powers. The Presidential Council for Minority Rights also serves as a check on the legislature by reviewing bills to ensure that they do not discriminate against racial and religious minorities. However, the Council's powers are constrained by the presence of an override mechanism as well.
Some have criticised the government of Singapore as disregarding constitutionalism and the separation of powers in favour of pragmatism. Former Attorney-General Walter Woon said of Singapore's legal system: "We effectively don't have a Constitution. We have a law that can be easily changed by Parliament, and by the party in power because the party is Parliament.".
Introduction
Constitutionalism
The idea of separation of powers is founded on the basis of constitutionalism. The notion of constitutionalism is primarily one of culture. Lawrence W. Beer proposed in Constitutional Systems in the Late Twentieth Century Asia (1992) that constitutionalism is where "national history, custom, religion, social values and assumptions about government meet positive law, economic force and power politics".. As a result, the notion of constitutionalism differs from region to region and there can be no one specific notion of constitutionalism across the world. As Thio Li-ann puts it, "constitutionalism is itself a form of culture which is constructed, rather than 'organic'; a constitutional order is the 'most complex form of socio-political organisation'"..
Even though the constitutional culture differs from country to country, in general the "idea of modern constitutionalism rests upon the distrust of power".. This is founded on the problem of power as espoused by Lord Acton – that "[p]ower tends to corrupt, and absolute power corrupts absolutely"..
It is this distrust of power that has resulted in the need to ensure separation of powers. The ultimate aim of constitutionalism is to establish the idea of limited government. In countries that subscribe to constitutional supremacy, the constitution is the supreme law of the land and demarcates the extent of power that each branch of government (the executive, legislature and judiciary) is able to wield, as well as how each branch may act as a checking mechanism on the other branches. This aspect of constitutionalism is "concerned with curbing oppressive government and preserving individual freedom while retaining a realm for the exercise of legitimate governmental power"., cited in Thio, "The Province of Constitutional Law", p. 38, para. 01.103.
Separation of powers The state needs laws in order for it to function, and this results in the creation of three distinct powers: one to create laws (the legislature), one to execute the laws (executive), and one to ensure that the rules are being followed (judiciary). Each branch of government has its own set of functions and hence the power that is available for each branch to wield is different as well. Even though this power to govern the society has already been divided into the three branches, the idea of constitutionalism implies "a commitment towards regularised legal restraints on power in the form of inter- and intra-institutional checks and balances and legal procedure"..
Simply put, there must be a separation of powers, where each branch is able to wield its own power to perform its functions independent of undue influence but yet be restrained from an abuse of its power through checking mechanisms. A system of checks and balances serves to ensure that each power will not be subject to abuse by the controlling body. While the checking mechanisms exercised by each body should be sufficient to prevent abuse of power, they should also not overstep their boundaries and encroach upon the powers that the other branches wield lawfully. In The Federalist No. 51 (6 February 1788), James Madison wrote that "[a]mbition must be made to counteract ambition",. while in The Federalist No. 48 (1 February 1788) he explained the need for a system of checks and balances in preserving the separation of powers doctrine:"Publius" (Madison), "Constitutional Connection of the Departments of Government", The Federalist, pp. 271–276 at 271.
Reasons for separation of powers
One of the most notable proponents of the conception of separation of powers was Montesquieu in The Spirit of the Laws (1748). In that work, he observed:.
The separation of powers brings its merits in just governance. However, where each branch wields more power than it legitimately should, there is room for abuse, leaving the rest of the society open to the potential of being ruled by tyranny of the majority. Hence it is important that a system of checks and balances is in place to ensure that power will not be abused to the detriment of the people..
Separation of powers also promotes the efficiency and competence in allocating powers by "[fitting] form to function by matching tasks to the most suitable body". Specialization of the functions and roles of the various branches helps to promote efficiency as each branch of government has specific tasks and goals that it can work towards. After all, one of the main aims of this measure is to ensure that society's goals are met, and this can be done through an efficient system of government. Lastly, separation of powers helps to enhance democratic responsibility. With the various branches of government being responsible for specific functions, people are more inclined to vote into Parliament (which will form part of the legislature) persons who will best represent their views.
Pure and partial separation of powers There are two main notions of separation of powers – pure separation of powers and partial separation of powers. Pure separation of powers was a concept formulated by M. J. C. Vile in Constitutionalism and the Separation of Powers (1967) as a constitutional arrangement where there are no overlaps at all between the branches of government. In fact, "the persons who compose these three agencies of government must be kept separate and distinct, no individual being allowed to be at the same time a member of more than one branch. In this way each of the branches will be a check to the others and no single group of people will be able to control the machinery of the State"..
In practice, this is hard to achieve and largely remains a theoretical notion. One of the few states that can be considered close to achieving this state of separation of powers would be the United States of America.Thio, "Constitutional Principles", p. 159, para. 03.015. On the other hand, legal systems that follow the Westminster model adopt a partial separation of powers. This occurs when there are overlaps across the three branches. In Singapore, the legislature and executive overlap because ministers in the Cabinet are appointed from the Members of Parliament (MPs). Thus, the same group of people are able to exercise both the power to make law and to execute the law., Art. 25(1).
Origins of the separation of powers in Singapore The origins of the separation of powers in Singapore lie in the Westminster constitutional model inherited from the United Kingdom during its colonial past, first as part of the Straits Settlements, and then as an independent nation. When Singapore was transferred to the Colonial Office in 1867, it was given a normal colonial constitution. This constitution vested legislative authority over the colony in the Legislative Council of the Straits Settlements. The constitution also retained the structure of the judicial system already established by the Second Charter of Justice, which had vested judicial power in the Court of Judicature of the Straits Settlements. In 1877, an Executive Council was introduced into the government of the Straits Settlements, with the role of advising the Governor on all affairs of importance..
From 1877 onwards, this broad structure specifying the powers of the three organs of state remained largely intact. The constitution remained unchanged until the end of the Japanese Occupation, when the Straits Settlements were disbanded. Although constitutional amendments were then made, the overarching hierarchy of executive, legislative and judicial bodies which had been operating before the war was retained. This basic arrangement also survived Singapore's merger and separation from Malaysia, and consequent independence.Tan, "The Evolution of Singapore's Modern Constitution", pp. 6 and 14.
The Singapore Constitution thus vests legislative, executive and judicial power in the legislature, executive and judiciary respectively.Constitution, Arts. 23, 38 and 93. This is a defining feature of Westminster-style constitutions, of which Singapore's constitution is one.. The doctrine is implicit from the fact that the organs of state have separate roles..
The separation of powers doctrine in Singapore is not absolute but qualified; it is not pure but partial.. The partial separation of powers doctrine in Singapore is exemplified in the following ways: