Constitutional Law: Singapore's Separation of Powers and Article 9

This essay provides an analysis of the separation of powers within the framework of the Constitution of the Republic of Singapore, examining the roles of the executive, legislature, and judiciary. It discusses how the doctrine of separation of powers is applied in Singapore, the checks and balances in place, and the implications of Article 9, which protects life and personal liberty. The essay explores the case of Yong Vui Kong v Public Prosecutor [2015], which clarified the definition of 'right to life' and the limitations of judicial review concerning punishment. The essay further examines the constitutional supremacy and the judiciary's role in ensuring laws align with the constitution. By analyzing the constitution and relevant case law, the assignment elucidates the protection of citizens' rights and liberties and the limitations on governmental power in Singapore. This assignment is a valuable resource for students seeking to understand the intricacies of Singapore's constitutional law.

Running head: CONSTITUTIONAL LAW
CONSTITUTIONAL LAW
Name of Student
Name of University
Author Note

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Introduction
In the present assignment discussions have been made in relation to the separation of
powers found on the basis of the constitutionalism which in turn can be seen to be based on
distrust of power and is seen to be based on the desirability of the limited governance concept.
For achieving the desired result the Constitution of the Republic of Singapore is seen to be
dividing the power for the country’s governance into three separate branches. These three
branches of government can be classified as: the executive, the legislature and the judiciary. The
legislature enacts the legislation and the other laws of the country; the executive branch is seen to
be executing the laws that have been enacted by way of the legislature and finally enforcement of
those laws is done by the judiciary branch. Each of these branches are being protected from the
influences of the external powers while the prevention of the abuse of the powers that was
entrusted on them by the way of checks and balances. In the current assignment discussion of the
separation of powers between the three organs of the government has been done by analyzing the
Constitution of the Republic of Singapore, Article 9.
Discussion
The Government of Singapore can be seen to be practicing the separation of powers in a
partial manner. The President and the Parliament are the part of the Legislature. Supreme Court
Judges are seen to be the part of the Judiciary whereas the President, Cabinet, PM, Police, Civil
Services and the AGC are seen to be belonging to the Executive branch. As the Prime Minister
and the other ministers are the members of the Parliament the Cabinet acts as the Parliamentary
Executive (Ong, 2014). By way of weak sanction of the doctrine of individual minister

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responsibilities the legislature is seen to be imposing a check on the executive branch. It has
basically been stated through the doctrine of separation of powers that the different governments
need to be separate and distinct for the preserving liberty (Barr, 2014). There should be a will
and power for working on its own by each branch of the government. In furtherance, there
should be independence in the work of the members of each department. Under the provisions of
the Constitution of Republic of Singapore each of the branches are seen to be performing the
duty to be acting as a watchdog over the other two departments. Each department can further be
held accountable for any decision that has been taken by the other two branches and are
responsible for ensuring that the decisions have been taken in a proper way and have also been
made public. The main aim of the three organs of the government is protecting the rights and
liberties of the citizens and to protect them against any kind of unfair rule or law.
Constitution can basically be defined as the collection of rules depicting both the
creations and the operations of the government and its different organs. As per the Article 4 of
the Constitution of Republic of Singapore, the Constitution is being regarded as the supreme law
of the country or in other words ‘mother of all laws’. Any law that is seen to be in contradiction
of the constitution is prohibited to be enacted. This can be described as constitutional supremacy.
By way of the Constitution of the Republic of Singapore the basic framework and the
fundamental principles in relation to the three organs of the government are laid down. A system
of checks and balances are seen to be created by separation of power of the three organs of the
government. Although there has been no mention in the Constitution about the doctrine of the
separation of power yet its implications are seen to be present in the governmental system that is
being prescribed by the Constitution. The President has been vested the authority of the
Executive Branch by the Cabinet or the President or any other Minister under the authorization

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of the Cabinet subject to the Constitution of Singapore. The legislative power is being vested to
the Legislature which consists of the President and the parliament. The judicial power of
Singapore government can be seen to be vested to the Supreme Court and all other subordinate
courts of Singapore as has been provided by any written law which is in force at the particular
time. The judiciary branch is seen to be keeping a check on the Executive and the Legislature.
The duty of judiciary is to ensure that the members in the executive branch have been acting
according to the powers that have been conferred to them by the Parliament and the law. An
example of such duty of the judiciary is that a judiciary can hold accountable an official of any
Ministry if the official is seen to be acting beyond the powers that were being vested upon him
by way of any particular law. In furtherance the duty of the Judiciary can be said as to ensure that
the laws that have been passed by way of legislature are consistent with the provisions of the
Constitution of Republic of Singapore. The Judiciary further has the right of striking down a law
that it finds to be in inconsistence with the Constitution because of the practice of Constitutional
Supremacy present in Singapore.
The Fundamental liberties of people are set out in the Constitution of the Republic of
Singapore, Part IV. In the Article 9 of the Singapore Constitution the protection to life and
personal liberty has been described (Tan, 2014). In the Article 9 (1) of the Constitution of the
Republic of Singapore it has been stated that no person should be deprived of their life or their
liberty except according to the law. Article 9 (2) states that if any complaint is made to any judge
or to the High Court about the detainment of any person which can be considered as unlawful,
there should be an inquiry is needed to be done by the court in response to the complaint that had
been made and unless the Court finds that the detention was lawfully it is the duty of the Court to
be ordering to produce the person before it and release him accordingly. Article 9 (3) states that

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if a person is being arrested he needs to be informed abound the possible grounds on which he
was being arrested and further should be allowed to be consulting and to be defended by his
choice of legal practitioner. In the subsection 4 of Article 9 it is stated that a person needs to be
produced before the magistrate either in person or by the way of video-conferencing within 48
hours and without delaying unreasonably according to the law if it is found that the person has
been arrested and not being released. The person further should not be kept in detention after 48
hours without the Magistrate’s authority.
In the case of Yong Vui Kong v Public Prosecutor [2015] the Court of Appeal through its
decision has given for the first time a clear definition of the term ‘right to life’ mentioned in the
Article 9 (1) of the Constitution of Republic of Singapore. The question whether caning can be
seen to be amounting to ‘torture’ in breaching Article 9 (1) of the Constitution was being raised
in this case. The appeal for the case was dismissed by the Court of Appeals by stating that
although there has been a significant amount of waning in the use of judicial corporal
punishment in the international levels and there is a significance in the increase in opinion in the
international level that corporal punishment amounts to degrading and cruel form of punishment
of inhuman nature, yet no consensus has been made internationally that constitutes caning as
torture under any regime of punishment with medically appropriate safeguards. The Court
further stated that even if there were any such consensus present, the Court of Appeals is seen to
be operating under the domestic legal system so only the domestic laws would be applicable in
case there is any kind of inconsistency that is found within the international law norms. In the
case it has further been stated by the court at the time of defining terms ‘life and personal liberty’
that the Court lacks the ‘institutional competence’ for making any judgment on the form of
punishment of caning or substitute the judgments that were already made by the legislature. It

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was also mentioned by the court that for the abolishment of caning n all campaigns are needed to
be taken up to the legislature. In this case the Court of Appeal explained that for engaging the
provisions of Article 9 (1) there must be a deprivation of life or liberty of a person present
because of caning. Arguments were made by the Attorney-General regarding the earlier court
decisions in relation to referring the term ‘personal liberty’. It has been stated by the Attorney-
General that the term was used in the earlier decisions of the court for referring only the unlawful
incarceration or detention. As physical restraint during caning can only be seen as an incidental
aspect for administering caning and not a primary object so it cannot be counted as any kind of
deprivation of personal liberty of a person.
No proper definition for the term ‘life’ has been given prior to the decision of the case
Yon Vui Kong. The term personal liberty however had been first addressed in the case of Lo Pui
Sang and others v Mamata Kapildev Dave and others (Horizon Partners Pte Ltd, intervener)
[2008]. In the case the court was seen to be stating that personal liberty is always understood to
refer as personal liberty against any unlawful incarceration or detention of any person. This
statement was further confirmed in the case of Tan Eng Hong v Attorney General [2012] by the
Court of Appeal. In the case of Lim Meng Suang and another v Attorney General [2015] the
definition of the term personal liberty was reaffirmed. According to the court the interpretation
of the definition of the term life discussed under Article 9 is needed to be done narrowly with
relation to the structure and context of the provision of Article 9 and according to the personal
liberty jurisprudence. In Yong Vui Kong case explanation has been given by the Court of Appeal
that under Article 9 of the Constitution the State is prohibited to be depriving any individual of
his life or personal liberty unlawfully but no provision is present which can be seen to be
imposing any duty on the State to take any affirmative measure for the facilitating or promoting

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the enjoyment of life and personal liberty of a person. Article 9 (1) has been contemplating that
the intrusion or deprivation right to life and liberty of any individual can only be done according
to the law by the State. Under the provisions of Article 2 (1) of the Constitution of Republic of
Singapore the term law is seen to be inclusive of legislative enactments. . Thus it is seen that
even when a right is falling under the category of the term life and personal liberty the
Parliament cannot deprive any person of the certain right without the enactment of any law
validly. In case anyone wants to challenge the enactment the litigant is needed to be showing that
the enactment would deprive him his right to ‘life and personal liberty’ and that the enactment
has been void and inconsistent to another law that has been preceding it. In other words the
objective of the Article 9 (1) of the Singapore Constitution is to ensure that the Government is
acting according to all the valid laws that are present at the time when deprivation of life or
personal liberty of a person is being done.
An important question that arises in respect to the Article 9 (1) is if the Article is only
imposing negative obligations or is there any positive imposition of the obligations. In the
question’s context it can be said that the European Convention Article 2 (1) both negative and
positive aspects are described. In the Article 2 (1) it is mentioned that the law should protect the
right to life of every person and there should not be any intentional deprivation of any person’s
right to life except in the cases where there is an execution of sentence by the court in relation to
any crime committed by the person and for which he has been penalized. In the case Öneryildiz
v. Turkey [2004] it was observed that the right to life that has been mentioned in the Article 2 (1)
of the European Court of Human Rights imposes both positive and negative obligation. In
contrast of this article, in the Article 9 of the constitution of Singapore it is only stated that no
person will be deprived of life and personal liberty with exception of according to law. The

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positive aspect of protecting life or liberty of any person is completely in the hands of either the
Legislature or the Executive.
In the recent times the judicial system of Singapore government is seen to be taking a
differential approach than the executive and legislature branches of the government. Although
the judiciary cannot be seen to be biased on the favor of the other organs of the government
however there can be seen an abundance of leeway that the judiciary gives to the other two
organs by the help of judicial attitude while assuming that the legislations or actions of the
Parliament and the Executive branch have been in accordance to the provisions of the
constitution unless proven absurd or arbitrary. In the case of Rajeevan Edakalavan v Public
Prosecutor [1998] it had been stated by the High Court that there is no duty of the police for
informing the arrested person his right to the entitlement of consultation with a lawyer. It was
further stated by the Court that the Parliament should be amending the Constitution. The
Parliament considered this in 2010 whenthe review of the Criminal Procedure Code was being
done however the Law Minister declared that it is not in the intention of the Government to
change the Constitution.
Conclusion
In the present assignment discussions were made in relation to the separation of powers is
seen to be based on distrust of power and on the desirability of the limited governance concept.
For achieving the desired result the Constitution of the Republic of Singapore is seen to be
dividing the power for the country’s governance into three separate branches. These three

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branches of government can be classified as: the executive, the legislature and the judiciary. The
Singaporean Government can be seen to be practicing the separation of power in a partial
manner. The President and the Parliament are the part of the Legislature. Supreme Court Judges
are seen to be the part of the Judiciary whereas the President, Cabinet, PM, Police, Civil Services
and the AGC are seen to be belonging to the Executive branch. As the Prime Minister and the
other ministers are the members of the Parliament the Cabinet acts as the Parliamentary
Executive. The Fundamental liberties of people are set out in the Constitution of the Republic of
Singapore, Part IV. In the Article 9 of the Singapore Constitution the protection to life and
personal liberty has been described. In the Article 9 (1) of the Constitution of the Republic of
Singapore it has been stated that no person should be deprived of their life or their liberty except
according to the law. In the ‘Yon Vui Kong’ case it has been stated by the court at the time of
defining terms ‘life and personal liberty’ that the Court lacks the ‘institutional competence’ for
making any judgment on the form of punishment of caning or substitute the judgments that were
already made by the legislature. Thus through the Yon Vui Kong case under the provisions of the
Constitution of Singapore, Article 9 it is seen that the three branches of the government do not
interfere with the functions of each other.

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Reference
Barr, M.D., 2014. The ruling elite of Singapore: Networks of power and influence. IB Tauris.
Constitution of the Republic of Singapore
Criminal Procedure Code
European Court of Human Rights
Lim Meng Suang and another v Attorney General [2015] 1 SLR 26
Lo Pui Sang and others v Mamata Kapildev Dave and others (Horizon Partners Pte Ltd,
intervener) [2008] 4 SLR (R) 754
Öneryildiz v. Turkey [2004] (Application no. 48939/99)
Ong, B.J., 2014. The basic structure doctrine in Singapore: A reply. Singapore Law Gazette, p.1.
Rajeevan Edakalavan v Public Prosecutor [1998] ICHRL 1
Tan Eng Hong v Attorney General [2012] 4 SLR 476
Tan, K.Y., 2015. The Constitution of Singapore: A Contextual Analysis. Bloomsbury Publishing.
Yong Vui Kong v Public Prosecutor [2015] SGCA 11