Book Review: Jaclyn Neo on Kevin Y.L. Tan’s “The Constitution of Singapore: A Contextual Analysis”

[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Jaclyn Neo reviews Kevin Y.L. Tan’s book on The Constitution of Singapore: A Contextual Analysis.]

Contextualizing the Singapore Constitutionalist Paradox

–Jaclyn L. Neo,* Assistant Professor of Law, National University of Singapore

Befitting of his status as one of the foremost legal historians in Singapore, Kevin YL Tan’s masterful introduction to Singapore constitutional law starts at the beginning. It situates the Singapore constitution in its political history as a burgeoning British colony, having received English law and associated legal and political traditions during a significant period of colonization. This legal, political, and social historical background informs the constitutional context, not least because the historical narrative is consciously and repeatedly invoked in public discourse to justify, reaffirm, and signal constitutional choices. It is also key to understanding the paradox that Singapore presents for constitutionalism, especially to liberal constitutionalism.

Singapore is not a liberal constitution and does not purport to be one. However, its constitutional system contains features that were clearly modeled after constitutions of many liberal democracies, including the United Kingdom and the United States of America. That said, it is also not accurate to characterize Singapore as an authoritarian state, as some have done. Indeed, Tan characterizes Singapore’s constitution as communitarian or softly authoritarian. In this regard, he is in conversation with scholars who have sought to grapple with the paradox of Singapore’s constitutional system as it displays some authoritarian elements but also has a strong commitment to the rule of law.[1]

For instance, most recently, Mark Tushnet identifies Singapore as the prime case study for his model of authoritarian constitutionalism, where “liberal freedoms are protected at an intermediate level, and elections are reasonably free and fair.”[2]

Tan notes that “Singapore is a textbook example of a ‘soft authoritarian’ state, a kind of benevolent dictatorship’. He explains that his notion of a soft authoritarian state is one that is “highly centralized and powerful”, and “makes all key political, social and economic decisions”. He also ties soft authoritarianism with the claim that economic progress requires the subjugation of individual freedoms to state imperatives. Despite these seeming illiberal practices, Tan notes that the country is “politically and socially stable”, and “the general population lives relatively happily under this all-knowing leadership”.

In order to fully comprehend how a populace could affirm a seemingly authoritarian regime, albeit a soft one, one has to look at the constitutional culture. This Tan develops in the book. For him, constitutional culture is “the agglomeration of beliefs and attitudes that the people, judges, lawyers, and the state hold towards the Constitution and constitutional law in general.” While Singapore has “developed fragments of a distinct constitutional culture,” that has been constrained by historical circumstances and political conditions. Now, Tan does point out that “[t]he Singaporean public has not had much of an opportunity to develop its own unique constitutional ethos”. For him, this was partly because the public “had practically no part to play in Singapore’s constitution-making” and that it was for some time “far more concerned with bread-and-butter, day-to-day matters of survival.” This, and the electoral dominance of the ruling People’s Action Party’s (PAP), meant that constitutional changes were effected “top-down” rather than through any real political participation.

Tan’s analysis of Singapore’s constitutional law is thus perceptively situated in the context of the dominant political party’s belief in a strong (and efficient) state, an instrumental view of the law, and a general trust in authority. The PAP has been at the political forefront of Singapore’s journey to independence (including its brief merger with Malaysia) and having dominated the political landscape as the political party that has formed government after every general election since independence. Indeed, between Singapore’s independence in 1965 and 1981, the PAP controlled all the seats in Parliament. Today, it continues to control more than two-thirds majority in Parliament. The PAP’s political dominance has meant that state ideology is often consonant, if not identical, with party ideology. Tan highlights three imperatives – economic growth first, managing ethnicity; and ensuring their political dominance – as driving the PAP’s approach to governance and as thus having crucially influenced constitutional developments in Singapore. Furthermore, the PAP’s political dominance has also meant that for a long period of time, the PAP has been able to monopolize the political discourse as well as strongly influence constitutional culture.

This absence of an organically developed, citizen-driven constitutional culture can further be attributed to the socialization of the PAP-driven philosophy that trust, rather than distrust, in government is necessary and more beneficial as it fosters and empowers efficiency. As Tan points out, the prevailing attitude towards constitutionalism is rooted in the PAP’s view that the best form of government for Singapore is government by honorable men, or君子(junzi), where the government has “a duty to do right for the people, and who have the trust and respect of the population”. This points to an elitist idea of government since the claim is that “[o]nce elected into office, the government of the day should be allowed wide latitude to do a proper job and to work in the best interests of the community.” In order to provide the social foundations for this political theory, the government introduced the Shared Values White Paper in 1991, which identifies five shared values for the Singaporean society. These are: (1) Nation before community and society above self; (2) Family as the basic unit of society; (3) Regard and community support for the individual; (4) Consensus instead of contention: and (5) Racial and religious harmony. According to Tan, this was “an attempt by the government to develop a national ideology based on common values that could be shared by all and which would preserve the heritage of the different communities in Singapore.” Further, he astutely points out that while the White Paper appears “pretty much forgotten today and is seldom referred to by public actors”, its communitarian outlook continues to “seriously reflect the operational ethos of the PAP and its outlook on how the state should be governed.”

Tan’s observation that the constitutional culture is showing signs of change is one that deserves close attention. He notes for instance that there are now a rising numbers of constitutional challenges being filed in courts. Clearly, this change can be attributed to greater access to information on the constitution and constitutional issues. But as would probably be unsurprising in a soft-authoritarian state, this change is also to a large extent attributable to changes in the government’s approach towards constitutional law. Indeed, Tan notes that “[t]he willingness of the government and the judiciary to engage in constitutional discussion in recent years – through symposia, speeches and dialogues – has led to an attitudinal change in the way lawyers and students view the Constitution.”[3] While this change in approach may be partly because the government understands that it can no longer monopolize political discourse in an increasingly connected society, the fact that the government has made changes to increase political engagement with the electorate could be seen as being responsive to public opinion.

This responsiveness has certainly been identified as one reason for the PAP’s recent electoral success.[4] The recent 2015 General Elections testify to the durability of Singapore-style of constitutional law. While there was gerrymandering and other maneuvers made possible by incumbent advantage, the conditions for this election is by far the freest and most competitive in recent political history. For the first time, nine opposition political parties contested all the available seats in Parliament. The mainstream media sought to provide coverage to all political parties (albeit arguably not with the same level of enthusiasm), and new media was ablaze with anti-PAP chatter. Still, the PAP increased its vote share by almost 10 percentage points to 69.9%. It even managed to wrest one seat back from the opposition, winning 83 out of 89 seats in Parliament.[5] This was a landslide victory, by all counts, seeming to have surprised even the PAP, and taken as an endorsement of its political platform.[6] The outcome gels very well with Tan’s observation that “practicality and pragmatism in favor of the ‘greater good’ of the community” is the prevailing attitude that has embedded itself into the constitutional culture of Singapore.[7]

On the whole, Tan takes an institutional approach to analyzing Singapore’s constitutional law rather than a court-centric or rights-based approach. Indeed, Tan devotes only one chapter to discussing fundamental rights, which nonetheless emphasizes historical and institutional developments. For instance, it discusses the role of the two constitutional commissions in shaping the discourse on constitutional rights, and focuses quite unusually on the right to property and its exclusion from Singapore’s constitution.  To be sure, a further focus on the judicial interpretation of fundamental liberties (especially of more recent decisions of the Court of Appeal) would add to that discussion.  This discussion could build on some of the embryonic discussion on judicial doctrines and approaches that have distinctly influenced how judges interpret the constitution’s guarantees of fundamental liberties: Westminister constitutionalism, strict dualism (in relation to international law), the four walls doctrine (the idea that Singapore’s constitution must be interpreted according to local conditions), and a balancing approach as some of the key judicial approaches (see Chapter 8). For an American audience more attuned to a rights-centric approach to constitutional law, they may be left with more questions than answers. However, this accords with the heretofore dominant approach to Singapore constitutional law which tends to focus on political and institutional developments, rather than constitutional rights and cases.

In the final analysis, the text gives the reader an excellent starting point to contextualize their understanding of constitutional law in Singapore. The book also has significant comparative value from the institutional and constitutional design perspective as it sheds light on a range of constitutional innovations, such as the Group Representation Constituency (“GRC”) scheme (at Chapter 3) and the Elected Presidency (“EP”) (at Chapter 6). Notably, what Tan provides is the insider view to Singapore’s constitutional developments. As a long-time scholar of constitutional law, it is striking that Tan ends the book on a hopeful note. He suggests that the next stage of constitutional development would entail greater demands for a more liberal constitution and form of government as economic affluence leads to more people having their basic needs satisfied. Indeed, there is evidence that the constitutional culture is indeed moving in this direction. However, what the 2015 General Elections in Singapore suggests is that this call for greater self-actualization and more freedom may well take place with a responsive and transformative PAP in power, rather than without.

Suggested Citation: Jaclyn L. Neo, Contextualizing the Singapore Constitutionalist Paradox: Review of Kevin YL Tan’s “The Constitution of Singapore: A Contextual Analysis”, Int’l J. Const. L. Blog., Jan. 8, 2016, at http://www.iconnectblog.com/2015/11/book-review-jaclyn-neo-on-kevin-yl-tans-the-constitution-of-singapore-a-contextual-analysis

* I would like to thank Swati Jhaveri and Arun K. Thiruvengadam for reading previous drafts.

[1] Thio Li-ann, ‘Between Apology and Apogee, Autochthony: The Rule of Law beyond the rules of law in Singapore’ (2012) Singapore Journal of Legal Studies; Jothie Rajah, Authoritarian Rule of Law: Legislation, Discourse and Legitimacy in Singapore (New York: Cambridge University Press, 2012); Gordon Silverstein, ‘Singapore: The Exception that Proves Rules Matter’, in Tom Ginsburg & Tamir Moustafa, eds., Rule by Law: The Politics of Courts in Authoritarian Regimes (Cambridge: Cambridge University Press, 2008) 73.

[2] Mark Tushnet, Authoritarian Constitutionalism, 100 Cornell Law Review 391, at 396 (2015).

[3] See further, VK Rajah, ‘The Rule of Law’, Speech at the Opening of the Legal Year 2015, edited excerpt The Straits Times (Singapore, 7 January 2015) <https://www.agc.gov.sg/DATA/0/Docs/NewsFiles/OPENING%20OF%20LEGAL%20YEAR%202015_ATTORNEY-GENERAL%20V%20K%20RAJAH’S%20SPEECH_5%20JAN_checked%20against%20delivery.pdf> accessed 21 September 2015.

[4] Lydia Lim, ‘The Quiet Transformation of the PAP’, Straits Times (Singapore), September 12, 2015, http://www.straitstimes.com/singapore/quiet-transformation-of-the-pap.

[5] Sumiko Tan, ‘GE2015: PAP vote share increases to 69.9%, party wins 83 of 89 seats including WP-held Punggol East’, Straits Times (Singapore), September 12, 2015, http://www.straitstimes.com/politics/ge2015-pap-vote-share-increases-to-699-wins-83-of-89-seats-including-wp-held-punggol-east.

[6] Eleanor Wong, ‘Liberal reflections on loss and acceptance in GE2015’, Straits Times (Singapore), September 16, 2015 http://www.straitstimes.com/opinion/liberal-reflections-on-loss-and-acceptance-in-ge2015.

[7] For a more extensive analysis of the 2015 General Elections, see Tommy Koh, ‘Ten Reflections on GE 2015’, Straits Times (Singapore), September 17, 2015, http://www.straitstimes.com/opinion/ten-reflections-on-ge-2015