Constitutional Law 3
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Constitutional Law 3

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    Constitutional Law 3 Constitutional Law 3 Presentation Transcript

    • The Executive
    • The Executive Branch in Singapore
      • The Executive Branch – Cabinet & the President
      • Cabinet composition & functions
      • The Head of State
      • Discretionary Powers of the Head of State
      • The Elected President & his roles
    • The Cabinet
      • Parliamentary form of government – power lies mainly in the Cabinet
      • Cabinets developed in reigns of George I and George II in first half of 18 th century
      • English kings from Hanover, Germany, depended on small group of advisors to decide state policy
      • First British Prime Minister – Sir Robert Walpole (1676–1745)
    • The Cabinet
      • Singapore – Cabinet emerged out of the old Executive Councils
      • 1877 – First Executive Council formed to advise Governor of the Straits Settlements, Sir William Robinson
      • 1877–1954: Executive Council of the Straits Settlements
      • 1954 – Rendel Constitution – First Council of Ministers
      • 1958 – State of Singapore – Cabinet
    • The Cabinet
      • Article 24(1) – there shall be ‘a Cabinet which shall consist of the Prime Minister and such other ministers as may be appointed in accordance with Article 25’
      • No specification as to size of cabinet
      • No specification as to where members are to be drawn from
      • Prime Minister – Appointed by President – the person who ‘in his judgment is likely to command the confidence of the majority of the Members of Parliament’
      • Quaere: How does the President determine ‘confidence’?
    • The Cabinet
      • Prime Minister – First among equals – most powerful member of the cabinet
      • Typically holds most powerful post within his/her party – Secretary-General
      • Current Cabinet – 20 members.
      • Non-traditional posts – Minister Mentor (2004); Senior Minister (1988); Minister without Portfolio (1980)
      • Drawn from the ranks of MPs
      • Ministers charged with various departments or ministries by PM under Article 30.
      • PM may retain any portfolio for himself – eg Lee Hsien Loong was PM & Minister for Finance.
    • The Cabinet
      • Cabinet Ministers run ministries assisted by permanent secretaries and possibly junior ministers (Ministers of State).
      • Walter Bagehot (author of The English Constitution ) observed that the efficiency of the British government lay in the ‘close union and nearly complete fusion of the executive and legislative powers’
      • Article 24 – Cabinet has ‘general direction and control of the Government’
      • Cabinet can only by summoned by the Prime Minister – Article 28(1)
      • Collective responsibility of the cabinet – Article 24(2).
    • The Cabinet
      • Ministers hold office as long as they remain MPs
      • Term of office runs for duration of each Parliament
      • President may declare office of PM vacant if (a) PM resigns; or (b) ‘acting in his discretion’, the President ‘is satisfied’ that the PM has lost the confidence of the House.
      • Quaere: Can the President dismiss the PM? Perak Crisis 2009
      • Quaere 2: Is the Executive in Singapore an elected dictatorship?
    • The Head of State
      • President – Head of State
      • Initially a ceremonial role based on British Westminster practice.
      • Unlike British Governor who had real powers, President had very limited personal discretion:
        • Appointment of Prime Minister
        • Withholding assent to dissolve Parliament
        • Proclamation of Emergency
      • Changed dramatically with Elected Presidency amendments in 1991.
    • Presidential Discretion (pre-EP)
      • Appointment of Prime Minister
        • Meaning of ‘is satisfied’ – based on objective criteria or purely subjective.
        • Justiciability of President’s discretion?
      • Proclamation of Emergency
      • Presidential Pardon
      • Assent to Bills unaffected by EP provisions
    • Presidential Discretion – Appointment of PM
      • Appointment of Prime Minister
        • Adegbenro v Akintola (Privy Council, on appeal from Western Nigeria, 1963)
        • Stephen Kalong Ningkan v Tun abang Haji Openg & Tawi Sli (Sarawak, 1966)
        • Tun Haji Mustapha v Tun Datuk Haji Mohamed Adnan Robert & Datuk Pairin Kitigan (Sabah, 1986)
    • Presidential Discretion – Emergency
      • Is Proclamation of Emergency reviewable?
        • Lee Mau Seng v Minister for Home Affairs (1971) – the words ‘is satisfied’ does not mean that he is personally satisfied
        • Head of State’s exercise of discretion cannot be challenged in court
      150(1): If the President is satisfied that a grave emergency exists whereby the security or economic life of Singapore is threatened, he may issue a Proclamation of Emergency.
    • Presidential Discretion – Emergency
      • Is Proclamation of Emergency reviewable?
        • Lee Mau Seng v Minister for Home Affairs (1971) – the words ‘is satisfied’ does not mean that he is personally satisfied
        • Head of State’s exercise of discretion cannot be challenged in court
      150(1): If the President is satisfied that a grave emergency exists whereby the security or economic life of Singapore is threatened, he may issue a Proclamation of Emergency.
    • The Elected Presidency
      • Arose out of concern that a ‘freak election result’ could bring in a profligate and populist government (1984)
      • First White Paper 1988 – outline of main scheme
      • Second White Paper 1990 – inclusion of additional functions
      • Key Considerations
      • Preservation of parliamentary system of government
      • New mechanism must act quickly
      • New Institution must have high moral authority
      • President must have ministerial, high executive or administrative experience to ‘balance the demands of political expediency and the public interest
      • Entrenchment in the Constitution
    • The Elected Presidency
      • President to be elected by citizens of Singapore under Presidential Elections Act
      • Term of office is 6 years
      • Discretion now includes:
        • withholding assent to any Bill under Articles 22E, 22H, 144(2) & 148A
        • Withholding concurrence under Art 144 to any guarantee or loan to be given or raised by Govt
        • Disapproving transactions referred to in Arts 22B(7), 22D(6) or 148G
        • Withholding concurrence for preventive detention cases
        • Maintenance of Religious Harmony Act
      • Qualifications
      • Singapore citizen
      • Aged 45 or above
      • Resident in Singapore for not less than 10 years
      • Satisfy Presidential Elections Committee that he is person ‘of integrity, good character and reputation’.
      • Held high office for not less than 3 years in prescribed list under Art 19(2)(g) – cf Andrew Kuan (CFO, JTC)
    • The Elected Presidency
      • Entrenchment under Article 5(2A) still in abeyance
      • President Ong Teng Cheong’s attempt to test the system:
        • Constitutional Reference No 1 of 1995
        • Press interview 1999
      • President Nathan’s concurrence to draw down of $4.5 billion for Government’s $20.5 billion Resilience Package under Article 148A(1)
      • Quaere: Process deployed in making decision on the draw-down? Was this an adequate safeguard and second key?