Separation of Power in Singapore

Running head: SEPARATION OF POWER IN SINGAPORE
Separation of Power in Singapore
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The constitution of Singapore is the supreme law of the country, which clearly
demarcates between the three organs of government- namely, the legislature, executive and
judiciary. The Constitution is the main binding source that the legislature refers to while making
a law, while the law that are made by the legislature acts a source of judicial interpretation of the
constitution and some other statutes. For exercising its original jurisdiction, which is to hear
fresh cases for the first time, the High Court executes two kinds of judicial review: review of
administrative acts and review of legislation. It was held by the Privy Council that the liberties
guaranteed under Part IV of the Singapore Constitution requires to be interpreted with an
expanding horizon1. The courts, therefore keeps a philosophical approach of deference towards
Parliament so that essence of constitutional validity prevails. However, certain circumstances
lead to narrow interpretation of the fundamental liberties. The courts opts for a purposive
approach that favours the objectives of the constitutional provisions. The paper discusses
regarding the doctrine of separation of power that the country and its constitution strives to
maintain by applying its constitutional provisions, along with discussing with the fundamental
rules of natural justice in the context of criminal law.
John Locke, the English political thinker has laid down that theory that it is essential to
divide the state power in order to control the power of the state. In his book ‘Two Treatises of
Government’, he put forwarded his view of the separation of the legislative power from the
executive, for preventing the government from being arbitrary and oppressive2. Montesquieu, the
French philosopher supported the view of Locke and expanded the proposition which evolved to
1 Constitution Of The Republic Of Singapore - Singapore Statutes Online (2019) Sso.agc.gov.sg
<https://sso.agc.gov.sg/Act/CONS1963>.
2 John Locke, Two Treatises of Government (Awnsham Churchill, 1690) Book II, ch XII, at pp 365–369.

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the present classic doctrine of separation of powers. In his book ‘On the Spirit of the Laws’, he
stated that every government has three organs of government, the executive, legislature and the
judiciary3. He argued that if the executive and the legislative are put in the same hand or
authority, there are high chances that there would be extreme misuse of power and responsibility.
He justified his comment by pointing out the fact that if the same organ executes the law, it
would enact stringent laws to oppress the common mass. The independence of the judiciary
would also be defeated if the legislature or the executive exercise their power over it. Therefore,
there will be no liberty of the temple of justice if it is not separated from the executive and the
legislature. It is argued that if the legislature had control over the judiciary, then the life and
liberty of the people would have been vulnerable and exposed to arbitrary control, as in that case,
the legislator himself would be the judge and would make laws as per his whims and fancies. If
the executive controlled the judiciary, it would have then followed a retributive approach for
adjudication along with aggression and violence. Thus, the adoption of the theory of separation
of power is an essential step to keep the three organs of the government away from exercising
control over each other. In this way, they could ensure that the power to run the nation is not
centralized and that it is equally distributed among the three organs. This helps the organs to
check and balance each other’s jurisdiction and powers, and they pacify each other from being
oppressive. However, Montesquieu did not advocated for a strict and pure separation of power
that would require each organ to be in a watertight compartment. He talked in favour of a partial
separation of power, which would allow the organs of the government to share certain
responsibilities of each other. This would help to check and balance the power of the
government; moreover, strike a balance in carrying out good governance.
3 Baron de Montesquieu, The Spirit of the Laws (Thomas Nugent trans) (Hafner Press, 1949) at p 151

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Singapore has always been a strict follower of the doctrine of Separation of power, based
on the concept of constitutionalism. It is based on the distrust of power, which strives to strict the
government to exercise limited governance. The constitution of Singapore divides the governing
power between the executive, legislature and judiciary. These branches are protected and
guarded from any external influence, thus helping it to maintain a good check and balance
between the organs of government. The check and balance of power help to prevent and reduce
abuse of power. It was adopted by the nation by way of the Westminster Constitutional Model
from its colonial days. However, the Singapore system of government exhibits a partial form of
separation of power. The legislature being the lawmaker of the country, checks on the arbitrary
exercise of power of the executive by way of the principle of individual ministerial
responsibility. Similarly, as per the idea of constitutional supremacy, the Singaporean courts take
up the task to safeguard the constitution and eventually protects the separation of power of
Singapore. It checks and prohibits legislature from legislating unconstitutional laws and
therefore, invalidates the decisions of the legislature and the executive, which are infringing the
fundamental rights, and other provisions laid down in the constitution. The independence of the
judiciary helps it to check the misuse of power and authority by the other organs of the
government, thus helping it to enhance the doctrine of separation of power. However, the power
of the judiciary is also restricted by the constitution and by the legislative authorization to check
misuse of power.
The judiciary has strived to protect the notion of separation of power by refraining itself
from encroaching its power into the jurisdiction of legislature and as well as the executive.
However, Article 9 of the Constitution of Singapore guarantees life and personal liberty of
people, which cannot be infringed by any of the organs of the government, either by legislating