The Constitution of the Republic of Singapore Tribunal is a tribunal established in 1994 pursuant to Article 100 of the Constitution of the Republic of Singapore. Article 100 provides a mechanism for the President of Singapore, acting on the advice of the Singapore Cabinet, to refer to the Tribunal for its opinion any question as to the effect of any provision of the Constitution which has arisen or appears to likely to arise. Questions referred to the Tribunal may concern the validity of enacted laws or of bills that have not yet been passed by Parliament.
Constitutional questions may also be referred to the Tribunal when Parliament attempts to circumvent or curtail the discretionary powers conferred on the President by the Constitution. If the attempt is by way of an ordinary bill, the President can exercise personal discretion to withhold assent to it. It is then open to Cabinet to advise the President to refer to the Tribunal the question whether the bill circumvents or curtails his discretionary powers. If the bill is determined by the Tribunal not to have that effect, the President is deemed to have assented to the bill on the day following the day when the Tribunal's opinion is pronounced in open court. When Article 5A of the Constitution is brought into force, a similar procedure will apply to attempts to circumvent or curtail the President's discretionary powers through a constitutional amendment. If the Tribunal rules that the proposed amendment does have the effect of restricting the discretionary powers of the President, the Prime Minister is entitled to submit the bill to a national referendum for approval.
The Tribunal consists of not less than three judges of the Supreme Court. Its opinions are binding on all other courts. Since the Tribunal was established in 1994, to date only one constitutional question has been referred to it. The Tribunal determined in 1995 that although Article 5(2A) was not in force, Article 22H(1) did not prevent Parliament from restricting the President's discretionary powers through a constitutional amendment. Since then, there have been several unsuccessful attempts to persuade Cabinet to invoke the Article 100 procedure.
History
The Constitution of the Republic of Singapore Tribunal is an ad hoc tribunal established by Article 100 of the Constitution of the Republic of Singapore.Now the . Article 100 was introduced into the Constitution by the Constitution of the Republic of Singapore (Amendment No. 2) Act 1994, which was passed by Parliament on 25 August 1994 and assented to by President Ong Teng Cheong on 14 September 1994. It came into force on 1 October 1994..
Prior to the enactment of Article 100, Deputy Prime Minister Lee Hsien Loong noted during the Second Reading of the Constitution of the Republic of Singapore (Amendment No. 2) Bill that the Singapore Constitution had no provisions for referring questions of constitutional interpretation to the courts for an advisory ruling, especially those relating to new and complex provisions of the Constitution. Article 100 was intended to address this perceived lacuna in the Constitution..
One question of constitutional interpretation that was highlighted during the parliamentary debates pertained to the former Article 22H which had been incorrectly inserted into the Constitution by the Constitution (Amendment) Act 1991No. 5 of 1991. in January 1991.Lee Hsien Loong (1994), Singapore Parliamentary Debates, col. 429. Article 22H(1) provided that the President might, acting in his discretion, withhold his assent to any bill passed by Parliament (other than a bill to which Article 5(2A) applied) if the bill provided for the circumvention or curtailment of the discretionary powers conferred upon him by the Constitution. At that time, Article 5(2A), which entrenched certain core constitutional provisions (of which Article 22H(1) was one) by requiring the approval of the electorate at a national referendum for their amendment, had not been brought into force.Art. 5(2A) is not yet in force, as the Government is still fine-tuning the constitutional provisions relating to the discretionary powers of the President: see
In August 1994, Parliament intended to amend Article 22H to restrict the President's powers thereunder to only non-constitutional bills which provided for the circumvention or curtailment of the President's discretionary powers conferred upon him by the Constitution. Because Article 5(2A) was not in force, a question arose as to whether the President had the power under Article 22H(1) to withhold his assent to any bill seeking to amend any of the provisions referred to in Article 5(2A), and specifically to any bill seeking to amend Article 22H. President Ong Teng Cheong stated that in the interest of testing out the system, he wished to have this question referred to the courts for a ruling, and that he would accept as correct whatever interpretation of Article 22H was given by the court. In response to his request, Article 100 was inserted into the Constitution by Parliament for that purpose.Lee Hsien Loong (1994), Singapore Parliamentary Debates, cols. 431–432.
Reference of constitutional questions Grounds for bringing of reference
A constitutional question can be referred to the Tribunal on three grounds. First, under Article 100 itself, the President, acting on the advice of Cabinet, may refer to the Tribunal for its opinion any question as to the effect of any provision of the Constitution which has arisen or appears to the President likely to arise.Constitution, Art. 100(1). During the parliamentary debates preceding the introduction of Article 100, Nominated Member of Parliament Associate Professor Walter Woon posed the following question:
The reply by the Deputy Prime Minister Lee Hsien Loong was threefold:Lee Hsien Loong (1994), Singapore Parliamentary Debates, cols. 454–455.
Article 100 was drafted by following the precedent in the Constitution of Malaysia. Since it had worked for Malaysia, the drafters thought it safe for Singapore to follow suit. It was the intention of legislation concerning the elected President that the initiative to refer the question to the Tribunal should lie with the Government, and generally not with the President whose recourse was in vetoing the legislation. The Cabinet would advise the President and the matter would then be referred to the Tribunal. In the event of Cabinet wishing to ride roughshod over the President's views and refusing to refer a particular matter, there would be considerable public pressure exerted on the Government to so refer.
Questions referred to the Tribunal may concern the validity of enacted laws or of bills that have not yet been passed by Parliament.See Constitution, Art. 100(4), which states: "No court shall have jurisdiction to question the opinion of any tribunal or the validity of any law, or any provision therein, the Bill for which has been the subject of a reference to a tribunal by the President under this Article." [Emphasis added.]
The other two grounds relate to attempts by Parliament to circumvent or curtail the discretionary powers conferred on the President by the Constitution. Article 22H of the Constitution deals with attempts to alter the President's powers by introducing an ordinary bill. If this occurs, the President may exercise personal discretion to withhold assent to the bill. The Cabinet may, if it wishes, advise the President to refer to the Tribunal the question whether the bill in fact has the effect of circumventing or curtailing his discretionary powers. If the Tribunal determines that the bill does not have that effect, the President is deemed to have assented to the bill on the day following the day when the Tribunal's opinion is pronounced in open court.Constitution, Arts. 22H(1), (2) and (3).
When Article 5A is brought into force, the President will also be able to decline to assent to a bill seeking to amend the Constitution that has a direct or indirect effect of circumventing or curtailing his discretionary powers. In this case, the Cabinet may also advise the President to refer to the Tribunal the question of whether the bill indeed has this effect. If the Tribunal rules that the bill does not have this effect, the President is deemed to have assented to the bill on the day immediately following the day when the Tribunal pronounces its opinion in open court. On the other hand, if the Tribunal decides to the contrary, the Prime Minister may opt to submit the bill to the electorate. If the bill is supported at a national referendum by not less than two-thirds of the total number of votes cast, the President is deemed to have assented to the bill on the day immediately following the day when the results of the referendum have been published in the Government Gazette.Constitution, Art. 5A.
Procedure A reference must be made under the hand of (that is, signed by) the President, and must be served on the Attorney-General. The Attorney-General is required to assist the Tribunal in the hearing of the reference, and the President may be represented by such legal counsel as the Tribunal may appoint, after consulting the President.RC, O. 58 r. 6. The parties appearing before the Tribunal are not confined to the President and the Attorney-General. The Tribunal may direct that the hearing of a reference be notified to any interested person or, where there is an interested class of persons, to one or more representatives of the class.RC, O. 58 r. 5. If there is any interest that is affected which is not represented by counsel, the Tribunal may request that counsel argue the case for this interest.RC, O. 58 r. 7.
The reference must state the questions on which the Tribunal's opinion is required in a form which allows, as far as possible, answers to be given in the affirmative or the negative. There must also be a concise statement of facts, and documents must be included, as are necessary to enable the Tribunal to decide the questions referred.RC, O. 58 rr. 3(1) and (2). During the hearing of a reference, the procedure in proceedings before the Court of Appeal applies. The President of Singapore is treated as the appellant and all other parties as respondents.RC, O. 58 r. 8(3). However, the Tribunal is not bound by strict rules of evidence.RC, O. 58 r. 9. The proceedings of the Tribunal, except for the hearing for directions, are held in open court.RC, O. 58 r. 10. No party to any proceedings is ordered to pay any costs, and no court fees are payable in respect of any proceedings.RC, O. 58 rr. 14 and 15.
The Tribunal has to consider and answer a question referred to it not more than 60 days after the date of such reference. The Tribunal is mandated to certify to the President for his information its opinion on the question referred to it with reasons for its answer, and any Tribunal judge who differs from the opinion of the majority shall similarly certify his opinion and his reasons. The opinion of the majority of judges is the opinion of the Tribunal, and is required to be pronounced in open court.Constitution, Arts. 100(2) and (3).
Composition