Who does the constitution really safeguard? Part I

Jagwinder Singh

Who does the constitution really safeguard? The People or the People’s Action Party?
The mass of the people are not concerned with legal constitutional forms and niceties. They are not interested in the theory of the separation of powers and the purpose and the functions of a politically neutral civil service under such a constitution.

- Lee Kuan Yew, addressing civil servants in 1959

Speaking at a time of momentous social challenges, the above quote by the then Prime Minister may have been true. However, "constitutional forms and niceties” are usually what stand between the protection of the individual and the tyranny of the state and therefore, even though the "mass of the people” may not have been overly concerned with them, they have certainly been affected by them over the 53 years of our independence.

A Constitution is a set of rules, usually written, which set out the fundamental precepts by which a nation should be run. It identifies the organs of state and describes the relationship between the state and individual. It also identifies the functions and separation of powers in the government, parliament and judiciary to prevent the abuse of power. Importantly, it also codifies the rights of the individual citizen.

A Constitution is usually regarded as supreme amongst all laws and no statute can be enacted which is inconsistent with it. Some Constitutions, such as Germany and Honduras, have certain clauses that override all other clauses of the Constitution as well as the rest of the law, and which cannot be changed under any circumstances.

The Singapore Constitution provides measures that make it difficult to add to or amend itself as they require either a majority vote in parliament or a national referendum. However, due to the overwhelming control of parliament by the People’s Action Party since its rise to power 53 years ago, numerous amendments have been passed which have had the effect of strengthening the ruling party’s political machinery while weakening the fundamental civil liberties of the citizen.

In 1966, Barisan Sosialis (Socialist Front) MPs walked out of Parliament. The Barisans had formed when the right wing of the PAP led by Lee Kuan Yew began to distance itself from the socialist values of the majority of the PAP membership. (Barisan has been criticised for abandoning parliament; it claimed it wished to take the struggle to the streets but in reality, the mass arrests of 300 left-wing leaders in Operation Coldstore and Operation Pechah ("Destroy”) weakened the party to the point of extinction.)

Between 1966 and 1981 when Mr J.B. Jeyaretnam won the Anson by-election, parliament had been dominated by the PAP. To satisfy the electorate’s demands for more opposition representation in parliament, the PAP-dominated legislature amended the constitution in 1984 to ensure the "representation in parliament of a minimum number of members from a political party not forming the government.”

In effect, this meant a number of the best losing candidates in the general elections were admitted to parliament, could listen and provide feedback. They were not allowed to vote on Constitutional amendment bills, financial measures or motions of no confidence in the government. It was an opposition which could bark but not bite.

In the 1984 general elections, the PAP’s vote plummeted by 13 percent. This was due to an extremely deep recession and the bitterness associated with the Graduate Mothers’ Scheme. The Singapore Democratic Party’s Chiam See Tong secured the Potong Pasir seat and joined Mr Jayaretnam who had been returned by Anson voters. 

The PAP, visibly shaken, introduced a raft of measures. The Group Representative Constituency scheme was implemented just before the 1988 General Elections. The PAP claimed that minority ethnic representation was declining and the GRC system would remedy this.

Three single member constituencies would be grouped into one "superconstituency” and the slate of candidates must include one non-Chinese. In fact, minority representation had not been declining and research conducted by Dr Vincent Wijeysingha at the Open Singapore Centre in 2000 later confirmed this (Elections in Singapore: Are They Free and Fair; now out of print).

Interestingly, Singapore’s first chief minister, David Marshall was an Iraqi Jew and Mr Jeyaretnam, the first politician to break into a PAP-dominated parliament since 1966 was of Sri Lankan Tamil descent. The PAP would go on to use the communalist argument many times in subsequent years, for example with the creation of the ethnic self-help groups, CDAC, Sinda and Mendaki.

The period between the two elections of ’84 and ’88 were a period of civil society clampdown, culminating in the arrest of 22 social workers, community activists and theatre practitioners on the pretext of being involved in a Marxist conspiracy which has never been proven. This had the added - and to the PAP - welcome result of frightening civil society such that little opposition to PAP policies emerged in the period.

Mr Jeyaretnam was eventually expelled from parliament due to a series of lawsuits against him which were eventually reversed by the Privy Council in England, then Singapore’s highest appeal court. The judges of the Privy Council said,

Their Lordships have to record their deep disquiet that by a series of misjudgements, the appellant and his co-accused Wong, have suffered a grievous injustice. They have been fined, imprisoned and publicly disgraced for offences of which they are not guilty. The appellant, in addition, has been deprived of his seat in Parliament and disqualified for a year from practising his profession. Their Lordships order restores him to the roll of advocates and solicitors of the Supreme Court of Singapore, but, because of the course taken by the criminal proceedings, their Lordships have no power to right the other wrongs which the appellant and Wong have suffered. Their only prospect of redress, their Lordships understand, will be by way of petition for pardon to the President of the Republic of Singapore. [Emphasis added]

The President declined to pardon them and the Singapore judiciary ignored the judgment. Later, appeals to the Privy Council were abolished.

Having apparently managed to shut an effective opposition out of parliament, the Government resorted to another major constitutional amendment, introducing the Nominated Member of Parliament (NMP) scheme in 1990. The whip was not lifted upon the vote and therefore all PAP MPs voted for the measure despite uncharacteristic criticism from throughout the House. Dr Arthur Beng said, "This is the constraint upon us, and I guess I will have to continue to live a schizophrenic political life – speaking against, yet voting for a Bill.”

In a subsequent amendment (1997), the maximum number of NMPs was increased to nine, including a sunset clause which gave every new parliament the discretion to retain or dismiss NMP representation in parliament.

The NMP scheme has been widely criticised for its undemocratic nature and for a selection process that more or less guarantees that only persons of the most moderate opinions would be nominated. The selection of persons based on their special expertise is said to underscore, according to Australian academic, Prof Garry Rodan, the PAP’s technocratic and elitist, as opposed to democratic, approach to governance. The scheme, although giving the semblance of commitment to democracy in parliament, in fact detracts from it as NMPs are accountable to no one except those who elevated them to their position and are therefore unlikely to speak forcefully against policies that are undesirable for Singapore.

A final significant amendment to the Constitution was the modification of the President’s role in 1991. The position, formerly a largely ceremonial one, was made a directly electable one, with hugely expanded powers over key state funds and high-ranking public appointments.

However, the main democratic objection to that amendment was the eligibility criteria for office which were so stringent that they would only apply to a small group of (largely) men who, given the PAP’s dominance of the administration and commerce, would be sufficiently close to the PAP to ensure compliance, or at the very least, co-inherence with the government. As if to underscore the point, all Presidents have had a close relationship with the PAP either through the party apparatus, cabinet, or civil service. With the exception of the late Ong Teng Cheong, the other incumbents have never sought to play their role according to the responsibilities written in the Constitution but only according to how they have been delimited by the government of the day.

A written constitution like that of Singapore would be fairly difficult to amend in a multi-party democracy. Additionally, laws that run counter to it would also be difficult to enact. This is because to amend the Constitution requires a two-thirds majority vote in parliament. The over-representation of the PAP in the legislature gives our Constitution more of an "unwritten” characteristic, similar to that of the United Kingdom, where parliament is sovereign and can thus enact and amend any laws it so chooses to.

The advantage the PAP has had is its control of the legislature, itself a result of its power over other spheres of public and civil life through the control of the media, its status as the largest employer in the country, the draconian powers available to it under the Internal Security Act and, importantly, the fear that has been instilled in the population over generations of defamation suits, bankruptcies and arrests without trial.

The legislature superficially pacified the demands of the electorate by introducing the NCMP, NMP and elected President schemes. The substance of these amendments, in fact, points to a sole beneficiary: the PAP itself. Unnecessary and cosmetic amendments have been instituted helter-skelter while the question of our fundamental civil liberties promised to us in the Constitution remains unanswered.

In Part II, I hope to discuss some possible reforms of the Constitution that would restore our fundamental rights in a coherent way and the role of liberal democratic parties in that process.


Jagwinder Singh is a member of The Young Democrats.