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Constitutional Dialogue in Common Law Asia$

Po Jen Yap

Print publication date: 2015

Print ISBN-13: 9780198736370

Published to Oxford Scholarship Online: October 2015

DOI: 10.1093/acprof:oso/9780198736370.001.0001

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Overview of the Constitutional Systems

Overview of the Constitutional Systems

Chapter:
(p.31) 3 Overview of the Constitutional Systems
Source:
Constitutional Dialogue in Common Law Asia
Author(s):

Po Jen Yap

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198736370.003.0003

Abstract and Keywords

This chapter provides an overview of the three Asian constitutional systems under discussion. Section I examines Hong Kong’s constitutional model. Section II continues with Malaysia’s and Section III concludes with Singapore’s developments. Each section provides a brief sketch of the respective jurisdiction’s constitutional history, the constitutional powers assigned to the three branches of government, that is the legislature, the executive and the judiciary, the constitutional rights-regime provided, and its constitutional amendment procedures. This chapter essentially maps out and elaborates upon the socio-political and legal developments in the three former British colonies since decolonization.

Keywords:   Hong Kong, Malaysia, Singapore, constitutional structures, constitutional history, constitutional amendment

In the previous chapter, I have explored the normative justifications for dialogic review and have demonstrated why as a constitutional theory it is normatively superior to the alternatives of legislative or judicial supremacy.

In this chapter, I shall provide an overview of the three Asian constitutional systems under discussion. Section I will examine Hong Kong’s constitutional model. Section II will continue with Malaysia’s constitutional model and Section III will conclude with Singapore’s developments. In each section, I shall provide a brief sketch of the respective jurisdiction’s constitutional history, the constitutional powers assigned to the three branches of government, that is the legislature, the executive, and the judiciary, the constitutional rights regime provided, and its constitutional amendment procedures. The highlighted constitutional features would also be particularly salient to my later discussions on how dialogic review can take place in the jurisdictions discussed.

I. Hong Kong

A. Constitutional History of Hong Kong

The acquisition of Hong Kong by the British government was achieved via the conclusion of three treaties with China over the span of approximately 60 years.1 Following the confiscation and destruction of opium stocks belonging to the British in 1839, war broke out between the British government and the imperial Chinese government, and this culminated in the Treaty of Nanking in 1842 that formally ceded in perpetuity Hong Kong Island (p.32) to Britain. Following another altercation between the two governments in 1856, the British government went on to occupy Beijing in 1860 and compelled China to conclude a second treaty, the Convention of Peking, which ceded the Kowloon peninsula in perpetuity to Britain. Subsequently, as Britain observed how Japan, Russia, France, and Germany had successfully obtained leases over different ports in China, it decided to follow suit, and this culminated in the third treaty, the Convention of Peking of 1898, which provided for a 99-year lease of the immediate hinterland of Kowloon, including land still known today as the New Territories. The lease would expire on 30 June 1997, an event too remote and far into the future for the British government then to consider the consequences following its expiration.

As a Crown Colony, Hong Kong was governed pursuant to the Letters Patent of 1843, which, as amended through the years, formed the Constitution of Hong Kong until 30 June 1997. The People’s Republic of China was established in 1949, but it was not till the 1970s that the two governments met to discuss the future of Hong Kong. By 1976, the devastating Cultural Revolution had come to an end. With the demise of Mao Zedong and the ascendance of Deng Xiaoping in Chinese politics, China embarked on its new policy of economic reforms and liberalization. At the same time, the demands of commerce were prompting the British government to resolve the future of the territory as the Hong Kong administration was unable to grant leases beyond 1997, and businesses equally faced immense uncertainties when they sought to raise loans from financial institutions. Nevertheless, negotiations between 1978 and 1982 reached an impasse as the British wanted to continue with the administration of Hong Kong after 1997, while the Chinese government was adamant about resuming its sovereignty over land that it claimed was wrongfully annexed via unequal treaties. It was only in 1983, after the British government conceded to relinquishing any authority over Hong Kong after 1997, that some headway was finally made in the negotiations. By then, the British government had decided to focus on safeguarding Hong Kong’s autonomy from the Chinese government, and on preserving its pre-existing economic, legal, and social infrastructures. Further negotiations also led to the conclusion of the Sino-British Joint Declaration in 1984, a legally binding treaty, signed by both governments.

The Sino-British Joint Declaration essentially provided that China would resume the exercise of sovereignty over Hong Kong with effect from 1 July 1997 and that Hong Kong would henceforth be administered as a Special Administrative Region. The Hong Kong Special Administrative Region (HKSAR) would enjoy a high degree of autonomy, except in foreign and defence affairs which are the responsibilities of the Central People’s (p.33) Government. The HKSAR would be vested with executive, legislative, and independent judicial power, including that of final adjudication, and the laws currently in force in Hong Kong would remain basically unchanged. The basic policies of the People’s Republic of China regarding Hong Kong would be further stipulated in a Basic Law of the HKSAR and these would remain unchanged for 50 years. A Sino-British Joint Liaison Group, an advisory body, was also established to ensure a smooth transfer of government in 1997.

The primary responsibility for the drafting of the Basic Law was shouldered by the Basic Law Drafting Committee (BLDC). It was composed of 59 members; 36 of them were from China and 23 from Hong Kong, all of whom were nominated by the Chinese government. The Hong Kong members, in particular, were dominated by the business elites. The BLDC was assisted by a Basic Law Consultative Committee (BLCC), an advisory body that actively solicited the views of the Hong Kong people on various drafts of the Basic Law. In comparison, the BLCC was a more diverse body as some of its 180 members were nominated or elected by professional bodies. The first Basic Law draft was published in April 1988 and after the first consultation, 100 revisions were made. The second draft was published in February 1989 and 24 further revisions were made after the second round of consultation. The Basic Law was eventually finalized and promulgated by the National People’s Congress, China’s highest law-making body, on 4 April 1990, and was slated to come into effect on 1 July 1997.

B. Relationship between the Chinese Authorities and the HKSAR

The Basic Law provides that the HKSAR shall be a local administrative region of the People’s Republic of China, which shall enjoy a high degree of autonomy and come directly under the Central People’s Government.2 National laws shall not be applied in the HKSAR except for those listed in Annex III to the Basic Law, which are confined to matters relating to defence, foreign affairs, and other matters outside the limits of the autonomy of the Region.3 The socialist system and policies shall not be practised in the HKSAR, and the previous capitalist system and way of life shall remain unchanged for 50 years.4 Article 21 also authorizes Chinese citizens among the residents of (p.34) the HKSAR to locally elect deputies of the Region to the National People’s Congress and to participate in the work of the highest organ of state power.

C. Hong Kong Legislature

Under the Basic Law, the Legislative Council constitutes the legislature of the HKSAR. It is a unicameral body, although it is composed of members who are elected via two different electoral methods. Currently, 35 seats in the Legislative Council are constituted via universal suffrage in Geographical Constituencies (GC) elections. Another 35 seats, however, are constituted via Functional Constituencies (FC) elections, a system in which the right to vote depends upon a person’s membership or registration in a recognized social, economic, industrial, commercial, political advisory, or professional body represented in the legislature.5 Legislative Council elections are now held every four years. Currently, there are 28 FCs in the Legislative Council, which include the Legal, Financial Services, and Insurance FCs etc. Each FC is allowed to return one FC legislator, except the Labour FC which is permitted to return three members and the District Council FC which is permitted to return six members. The FC system was first introduced by the British government in 1985, as part of an overall plan to develop representative government in Hong Kong. The aims of such FC elections were to allow the economic and professional sectors to be well-represented in the legislature and to maintain Hong Kong’s stability and prosperity after the hand-over.

However, this FC electoral system is not without its controversies. First, in many of the FCs, for example Insurance, Transport, Tourism, Finance, Labour etc., it is not individuals working in these professions that are eligible to vote; instead, in such FCs, it is only the recognized corporate bodies operating in these professions that are eligible to vote, and they would select their authorized representatives to vote as their proxies. Secondly, the inclusion of corporate voting raises the problem of ‘packing’; conglomerates with several subsidiaries and associate companies could easily ‘pack’ a single or even a few FCs with multiple corporate electors that are subject to the singular control of the parent company.6 The full extent in which ‘packing’ takes place in the FCs is practically impossible to verify as the recording or copying of any information from the public register of FC electors for research purposes is (p.35) prohibited by law. Thirdly, the size of the constituency base in each FC differs such that the relative voting power of an elector in a small FC would be far greater than that of another in a large FC. The FC with the smallest electorate base is Heung Yee Kuk, a statutory body that represents the indigenous inhabitants of the New Territories in advising the government on socio-economic matters pertaining to their welfare, and it had an electoral base of 147 registered individual electors in 2012. On the other hand, the Education FC had an electoral base of 92,957 registered individual electors in 2012. The variation in constituency size thus invariably affects the relative weight that each vote carries in determining the voter’s preferred candidate in the relevant FC.

Christopher Patten, the last governor of colonial Hong Kong, had attempted to expand the electoral base for the FCs in the mid-1990s by replacing corporate voting with voting by individuals or employees in all the FCs; and he further created nine new FCs that included all of the working population. The Legislative Council elections of 1995 took place on this basis. China had objected to these political reforms and perceived them to be inconsistent with the Basic Law. These reforms were of particular concern to China as both governments had reached a tacit understanding, when the Basic Law was enacted, that the last legislature of colonial Hong Kong would form the first legislature of the HKSAR. When the Patten reforms were passed, China decided to establish a Provisional Legislative Council (PLC) in 1997. The PLC was a temporary legislature, with a term-limit of one year, tasked by China to take charge of Hong Kong’s legislative affairs before the first Legislative Council could be elected. One of the PLC’s first tasks was to repeal the Patten electoral reforms. The first Legislative Council elections took place in 1998, pursuant to the pre-Patten electoral laws reinstated by the PLC; and since then, elections have taken place in 2000, 2004, 2008, and 2012.

Nevertheless, in view of the public pressure for electoral reform, the Basic Law was amended in 2010 to allow for five GC seats (constituted by universal suffrage elections) and five District Council FC seats to be added to the Legislative Council for the 2012 elections. (Previously, there was only one District Council FC seat in the Legislative Council.) District Councils (DCs) are local municipalities that advise the government on the well-being of the people and the provision of public services in the respective 18 localities across Hong Kong. With regard to the five new DC seats added in the 2012 Legislative Council FC elections, all registered voters who previously did not have the right to vote in any pre-existing FC could now vote for candidates contesting for these five FC seats, but eligible DC candidates had to be first nominated by the elected District Councillors. With these constitutional reforms, each registered Hong Kong voter now has two votes, (p.36) one to be cast for his or her preferred GC candidate and the other for his or her chosen FC candidate. However, with the massive increase in the electoral base for the new District Council FCs, the disparity in the relative weight that each vote carries in different FCs is now further exacerbated. In the 2012 elections, the added District Council FCs had about 3,220,000 registered electors. Notwithstanding this, Article 68 of the Basic Law provides that the ‘ultimate aim’ in Hong Kong’s political transition is for all the members of the Legislative Council to be elected by universal suffrage, but this must be done in light of the ‘actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress’.

Pursuant to Article 74 of the Basic Law, all private members’ bills relating to government policies may only be proposed with the Chief Executive of the HKSAR’s consent; private members’ bills relating to ‘public expenditure or political structure or the operation of the government’ may not be introduced at all. Furthermore, Annex II of the Basic Law provides that bills introduced by the government shall require only a simple majority vote of the members of the Legislative Council present, while bills introduced by individual members of the Legislative Council shall require a simple majority vote of each of the two groups of the Legislative Council members present, that is a majority of the FC legislators and a majority of the GC legislators must vote for the bill. In other words, Hong Kong effectively has a bicameral legislature when members of the opposition seek to pass bills in the Legislative Council.

This constitutional feature is particularly noteworthy in light of Hong Kong’s political realities. Since the 1980s, there have been two main political camps in Hong Kong—the pro-China/pro-establishment camp and the pro-democracy camp (or more commonly known today as the ‘pan-democrats’ camp). The pro-establishment camp is composed of an informal coalition of political parties and independent legislators that usually supports the agenda of the Hong Kong executive government. This informal coalition includes the Democratic Alliance for the Better of Hong Kong (DAB), the pro-Beijing political party that currently has the most number of seats in the Legislative Council, and the Liberal Party, a pro-business party whose vested interests often align with the government’s. It is significant that since the establishment of the HKSAR, while the pan-democrats camp has consistently won over 60 per cent of the popular vote in the GC elections and has a slight lead in the GCs, the pro-establishment camp has unsurprisingly dominated the FC elections, such that the pro-establishment camp is able to command an overall majority of the seats in the Legislative Council.7 In the 2012 (p.37) Legislative Council elections, the pro-establishment camp won 17 of the 35 GC seats and 26 of the FC seats.8 Therefore, since the Hong Kong executive government is heavily reliant on the support of the pro-establishment camp in the legislature for the passage of its bills, unrestricted elections by universal suffrage for all the seats in the Legislative Council would unlikely be allowed till the pro-establishment camp is able to form a clear majority in the Legislative Council, without the use of the FC system as a political crutch.

D. Hong Kong Executive Government

The Chief Executive is the head of the HKSAR and head of the government. He or she serves for a term of five years and for no more than two terms.9 Under the Basic Law, he or she is tasked to lead the government of the Region, to decide on government policies, and to be responsible for the implementation of its laws.10

The current Chief Executive, Leung Chun-ying, was elected in 2012 by members of an Election Committee composed of 1,200 members, with 300 members fielded from each of the following four sectors: (1) the industrial, commercial, and financial sectors; (2) the professions; (3) labour, social services, religious, and other sectors; and (4) members of the Legislative Council, representatives of district-based organizations, Hong Kong deputies to the National People’s Congress, and representatives of Hong Kong members of the National Committee of the Chinese People’s Political Consultative Conference.11 Nevertheless, Article 45 of the Basic Law provides that the ultimate aim in Hong Kong’s political transition is for the Chief Executive to be elected by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures. Before an elected Chief Executive can assume office, he or she must also be appointed by the Central People’s Government in Beijing. The Chinese Government has emphasized that this power of appointment enshrined under Article 15 of the Basic Law is substantive in nature, and therefore it has the discretion to refuse the appointment of a candidate successfully elected.

The Chief Executive is assisted by a ministerial team that he or she appoints. They are composed of Principal Officials who are in charge of (p.38) various portfolios, which include Finance, Justice, and Home Affairs. Article 54 also provides for an Executive Council to advise the Chief Executive on policy making. All Principal Officials are now members of the Executive Council, but the Chief Executive also appoints legislators and other leading public figures onto the Council.12 The appointment or removal of any member of the Executive Council is decided by the Chief Executive.13

E. Hong Kong Judiciary

The judiciary in Hong Kong is composed of the Court of Final Appeal (CFA), the High Court (which includes the Court of Appeal and the Court of First Instance), the District Court, magistrates’ courts, and other special courts established by law. The CFA is empowered to invite judges from other common law jurisdictions14 to participate in the appeals it decides, and judicial recourse to the common law and the rules of equity are maintained.15 The judges on all levels of the courts are appointed by the Chief Executive on the recommendation of an independent commission composed of local judges and persons from the legal profession.16

While Article 82 vests the power of final adjudication in the CFA, Article 158 vests the power of interpretation of the Basic Law in the Standing Committee of the National People’s Congress (SCNPC). Nonetheless, the SCNPC shall authorize the courts of the HKSAR to interpret on their own, in adjudicating cases, the provisions of the Basic Law which are within the limits of the autonomy of the HKSAR. However, on affairs which are the responsibility of the Central People’s Government or concerning the relationship between the Central Authorities and the HKSAR and if such judicial interpretation will affect the judgments on the cases, the courts of the HKSAR shall, before making their final judgments which are not appealable, seek an interpretation of the relevant provisions from the SCNPC. When the Standing Committee makes an interpretation of the provisions concerned, the courts of the Region, in applying those provisions, shall follow the interpretation of the Standing Committee.

F. Fundamental Rights in Hong Kong

Fundamental rights in Hong Kong are protected in Chapter III of the Basic Law. Notably, Article 39 expressly provides that any rights-restrictions shall (p.39) not contravene the provisions of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR), as applied to Hong Kong, which shall remain in force and be implemented through the laws of the HKSAR.

Before the Basic Law came into force in 1997, the Bill of Rights Ordinance (BORO) was passed in 1991 by the colonial government to ‘bring home’ the rights the British government acceded to in 1976 when it ratified the ICCPR and extended its application to Hong Kong.17 The passage of the BORO was, in particular, triggered by the violent suppression of the student demonstrators in Tiananmen Square over the summer of 1989. In its original form, Section 3 of the BORO provided that all pre-existing legislation that did not admit of a construction consistent with this Ordinance was, to the extent of the inconsistency, repealed; but this provision was excised by the Provisional Legislative Council in 1998. Although the BORO was and still is a mere statute such that its provisions could be repealed by a legislative majority, the Hong Kong Letters Patent was amended to provide that no law of Hong Kong shall be made after these changes to restrict the rights and freedoms enjoyed in Hong Kong in a manner which was inconsistent with the ICCPR as applied to Hong Kong. With the repeal of the Letters Patent after China’s resumption of sovereignty over Hong Kong, Article 39 of the Basic Law arguably retains the BORO’s semi-constitutional status, such that the BORO provisions may be used to invalidate any rights-infringing legislation, though the content of these rights-provisions may be changed by a mere legislative majority.

Nevertheless, Chapter III of the Basic Law enshrines most of the BORO rights, thereby expressly conferring constitutional status on these rights. Some of these rights include the right to free expression, the right to assembly, the right to equality, the freedom of religious belief, and the right against arbitrary arrest and imprisonment. Nevertheless, there are a number of BORO rights that are not protected in the Basic Law. The BORO expressly protects a person’s right against slavery and forced labour, but this right is absent from the Basic Law. Some BORO rights are more circumscribed in the Basic Law. The BORO protects a person’s right against torture and cruel, inhuman, or degrading treatment18 but the Basic Law only prohibits torture;19 there is a general right to privacy under the BORO20 but the Basic Law only protects (p.40) the privacy of one’s communication.21 Notably, the Basic Law also protects certain rights exclusively; these rights include the right of abode and the right to social welfare.

G. Constitutional Amendment Procedures in Hong Kong

According to Article 159 of the Basic Law, the power of amendment is vested in the National People’s Congress in China. The power to propose bills for any amendments is vested in the Standing Committee of the National People’s Congress, the State Council of the People’s Republic of China, and the HKSAR. Amendment bills from the HKSAR can only be submitted to the National People’s Congress by the delegation of the HKSAR to the National People’s Congress after obtaining the consent of two-thirds of the deputies of the HKSAR to the National People’s Congress, two-thirds of all the members of the Legislative Council, and the Chief Executive of the HKSAR. Therefore, the amendment process for a HKSAR-sponsored change is incredibly onerous.

Since its inception, the Basic Law has only been amended once, in 2010, where the composition of the Legislative Council was increased by five GC seats and five FC seats, and the composition of the Election Committee for the selection of the Chief Executive expanded from 800 to 1,200 members.

Article 159 also provides that no amendment to the Basic Law shall contravene the established basic policies of the People’s Republic of China regarding Hong Kong, though the Basic Law is silent on what these basic policies are.

II. Malaysia

A. Constitutional History of Malaysia

Between 1786 and 1824, the British East India Company established trade outposts in Penang, Singapore, and Malacca; and these outposts later formed the Straits Settlements, which came under the administration of the British Colonial Office in 1867.22 Between 1874 and 1889, Britain also concluded (p.41) treaties with the state Rulers of Perak, Selangor, Negeri Sembilan, and Pahang whereby each Ruler agreed to accept a British Resident whose advice had to be acted upon on all matters, other than those concerning the Islamic faith, in his state in exchange for British protection. In 1895, the four states of Perak, Selangor, Pahang, and Negeri Sembilan formed a federation known as the Federated Malay States (FMS), which was administered under the advice of the British Government. The Unfederated Malay States of Kedah, Perlis, Kelantan, Terengganu, and Johor also came under British protection following the signing of separate treaties between 1909 and 1923. In East Malaysia, North Borneo and Sarawak also became protected British States in 1888, though they were administered by the British North Borneo Company and the Brooke family respectively.

Following the end of the Second World War, the Straits Settlement disbanded and Singapore became a separate Crown Colony. The new Crown Colony of North Borneo was formed with the merger of the former North Borneo and Labuan, which became a British colony in 1846 after being ceded from Brunei. Similarly, Sarawak also became a Crown Colony. Penang, Malacca and the rest of the Malay States were amalgamated to form the Malayan Union in 1946. This Union was however short-lived as there was an outcry by the Malays against the loss of the rights and privileges of the state Rulers and the common citizenship conferred on all races. The Malayan Union was thus replaced by the Federation of Malaya in 1948. The Federation of Malaya was headed by a British High Commissioner with executive powers but the Federal Legislative Council would consist of 52 unofficial seats to be filled by elections. Citizenship rules were tightened, and the powers and the privileges of the Rulers enhanced. The Alliance Party, a coalition that consists of United Malays National Organisation (UMNO), the Malaysian Chinese Association (MCA), and the Malaysian Indian Congress (MIC), won 51 out of 52 seats in the 1955 Legislative Council elections; and Tunku Abdul Rahman, the Alliance’s leader, went on to assume the office of Chief Minister.

Subsequently, Tunku Abdul Rahman spearheaded a mission to London and negotiated for Malaya’s independence. After rounds of negotiation in London between representatives of the Rulers, representatives of the Alliance government and representatives of the British government, an Independent Constitutional Commission was appointed in 1956 to draft a Constitution that provided full independence for the Federation of Malaya. This Constitutional Commission was chaired by Lord Reid and is now commonly termed the Reid Commission. The Commission duly submitted its report in 1957 and a Working Committee was appointed to examine its recommendations. The final draft of the Constitution of the Federation of Malaya was (p.42) soon agreed upon, and the Federation of Malaya became an independent sovereign state on 31 August 1957.

Following a referendum in Singapore and elections in North Borneo (renamed Sabah in 1963) and Sarawak, plans were laid for the above- mentioned three territories to join an enlarged federation in 1963. The federation would be renamed Malaysia and the new member states would have significant autonomy under the new federal Constitution of Malaysia. Days before Malaysia came into being, the state of Kelantan brought a court challenge against the merger on the basis that the proposed decision to admit new states would require the prior consent of each constituent state in the original federation, but this challenge unsurprisingly failed as the Constitution of the Federation of Malaya 1957 did not impose such a requirement.23 Malaysia was formally established on 16 September 1963; but, two years later, on 9 August 1965, Singapore separated to form an independent republic on its own, thus leaving 13 states in the federation today. Furthermore, the Federal Territory of Kuala Lumpur was created in 1973; the Federal Territory of Labuan (ceded from Sabah) was established in 1984; and finally, the Federal Territory of Putrajaya was constituted in 2001.

B. Malaysia’s Federal Legislature

Malaysia has a bicameral federal Parliament, consisting of the House of Representatives (Dewan Rakyat) and the Senate (Dewan Negara). The Constitution also divides legislative power between the federal Parliament and the individual state Assemblies.24

With regard to the House of Representatives, there are currently 222 members representing their respective single-member electoral constituencies in the states and Territories, and they are elected on a first past the post basis. Such elections have to be held at least every five years.25

The Senate is currently composed of 26 elected members, with each state electing two members.26 The King, the Yang di-Pertuan Agong, on the advice of the government, also appoints two members from the Federal Territory of Kuala Lumpur, and one each from the Federal Territories of Labuan and Putrajaya. Forty additional senators can be appointed by the King, on the advice of the government. Therefore, the Constitution provides (p.43) for 44 appointed senators in all. The term of office in the Senate is fixed at three years and each senator may not serve more than two terms in office.27

The Constitution provides that a money bill may only originate from the House of Representatives, and the Senate may only delay its passage by a month.28 For a non-money bill, the Senate may delay its passage by one year.29 For bills seeking to amend the Constitution, the concurrence of at least two-thirds of the members in both the House of Representatives and the Senate is generally required.30 Therefore, the legislative powers of the Senate are nominal, except where it is faced with bills seeking to amend the Constitution.

It is noteworthy that Malaysia has been ruled by the same political coalition since its independence, that is the Alliance Party which was renamed Barisan Nasional (National Front) in 1974. It is significant, however, that National Front, for the first time, lost more than a third of the seats in the House of Representatives following the 2008 general election. In the latest general elections held in May 2013, the National Front coalition won 133 out of 222 federal Parliamentary seats and was thus returned to power again.

C. Malaysia’s Federal Executive Government

The Prime Minister is the head of the administration in Malaysia, and he or she is usually the leader of the political party dominating the coalition that controls the most number of seats in the House of Representatives. The Prime Minister is assisted by his or her cabinet of Ministers and all Ministers in Malaysia are concurrently members of either house of Parliament.

The King of Malaysia, also known as the Yang di-Pertuan Agong, exercises the executive authority of the federation, but he is primarily a ceremonial head and usually acts on the advice of the Cabinet. The term of office of the King is five years and he is elected or removed by the Conference of Rulers. The Conference of Rulers is comprised of the hereditary Rulers of the nine Malay States and the four Governors of Malacca, Penang, Sabah, and Sarawak. A hereditary Ruler in each Malay State reigns for life while a Governor is appointed for renewable terms of four years. Although a Governor is a member of the Conference of Rulers, he does not participate in any proceedings relating to the election or removal of the King or matters concerning the honours and dignities of royalties, or religious observances and ceremonies. The consent31 of the Conference of Rulers is required before any law that (p.44) affects the privileges, position, or dignities of the rulers, or any legislation seeking to change the boundaries of the states can be passed.32 Furthermore, their consent is needed before certain types of constitutional amendments can be passed, as would be discussed in a later section.33

Prior to 1993, no proceedings could be brought in any court against the King or any Ruler of a state in his personal capacity. However, following the Ruler of Johor’s alleged assault on a school hockey coach in 1992,34 a constitutional amendment was passed to strip the King and Rulers of their immunity from suit and to provide for a Special Court presided by the Lord President of the Supreme Court (now known as the Chief Justice of the Federal Court of Malaysia) to try the King and Rulers for any offences or civil wrongs committed. Unsurprisingly, the Conference of Rulers refused to give consent to this constitutional amendment. Subsequently, the government retaliated by withdrawing all ancillary perks which the Rulers enjoyed that were not expressly provided by law. A media war, under the influence of the government, was also waged against the Rulers whereby their extravagant lifestyles were disclosed to the public. The Conference of Rulers eventually caved in and agreed to an amendment that was similar to the original one, but modified so far as any proceeding against the King or a Ruler may only be instituted with the consent of the Attorney General.35

D. Malaysia Judiciary

Prior to 1988, Article 121 of the Malaysian Constitution expressly declared that ‘the judicial power’ of the federation shall be vested in the courts but the term ‘judicial power’ has since been excised.36 The Federal Court of Malaysia is the court of final resort in Malaysia. It hears appeals from the Court of Appeal, which in turn hears appeals from two coordinate High Courts, one in Malaya and the other in Sabah and Sarawak. Inferior courts may also be created by federal law. The Federal Court, however, has original jurisdiction over disputes between states or between the federation and the states, or on federalism matters.37 There is thus no separate state court system in Malaysia that applies only state laws. The Malaysia federal judiciary also does not have any ‘jurisdiction in respect of any matter within the jurisdiction of (p.45) the syariah courts’,38 which adjudicate over matters concerning the practice of the Islamic faith in Malaysia. Malaysia abolished appeals, on criminal and constitutional matters, to the Privy Council in 1978, and all ties were severed in 1985 when appeals on civil matters were also abolished. The Federal Court was renamed the Supreme Court in 1985, but it reverted back to its original title in 1994. Pursuant to Article 130 of the Constitution, the King may also refer to the Federal Court for its advisory opinion on any question as to the effect of any provision of the Constitution which has arisen or appears to him likely to arise.

The Federal Court is presided by the Chief Justice and it usually hears cases in panels composed of three or five members. The Chief Justice, the Judges of the Federal Court, the Judges on the Court of Appeal, and the Judges of the High Court are appointed by the King, on the advice of the Prime Minister, after consulting the Conference of Rulers.39 A Judicial Appointments Commission, chaired by the Chief Justice of the Federal Court, was established in 2009 to recommend to the Prime Minister suitably qualified persons for judicial appointments on the superior courts. The Prime Minister may now only select candidates that are short-listed by the Judicial Appointments Commission. Judicial independence is secured under the Constitution to the extent that all of the abovementioned categories of judges, once appointed, have tenure until they reach the age of 6640 and the judges’ remuneration may not be altered adversely after their appointment.41 These judges may also not be removed from office unless they have been found to have breached a prescribed code of ethics by a tribunal consisting of no less than five persons who hold or have held offices as judges on the Federal Court, Court of Appeal, a High Court, or equivalent offices in any court in the British Commonwealth.42 It is noteworthy that in 1988, the Lord President (now re-titled as Chief Justice) Tun Salleh and two other judges on the Supreme Court (now re-titled as the Federal Court) were impeached for acts of ‘misbehaviour’, the term used in Article 125(3) of the Constitution then, and were removed from office. It is generally believed that these judicial dismissals were politically motivated, as will be discussed in the next chapter.

The subordinate court judges in Malaysia do not have tenure, and they are under the supervision of the Judicial and Legal Service Commission headed by the Chairman of the Public Services Commission.43 The Constitution also allows for the appointment of temporary judges on the two High Courts, (p.46) known as Judicial Commissioners, to facilitate the disposal of business in the High Courts, and they exercise the same powers as High Court judges.44

E. Fundamental Liberties in Malaysia

Fundamental liberties in Malaysia are protected in Part II of the Malaysia Constitution. These rights include the freedom from slavery or forced labour, the right not to be criminally sanctioned by retrospective criminal laws, the right to equality, the right to property, the freedom of speech and assembly. While most constitutional rights are guaranteed to all persons, the freedom of expression and assembly is only guaranteed to Malaysian citizens.

Islam is the official religion of Malaysia, though any other religions may be practised in peace and harmony with it in any part of Malaysia.45 Article 11(1) protects a person’s right to profess and practise his or her religion, though this is subject to Article 11(4) that expressly allows for legislation to be passed that ‘control[s]‌ or restrict[s] the propagation of any religious doctrine’ among Muslims. One must note that the Malaysian federal judiciary also does not have any ‘jurisdiction in respect of any matter within the jurisdiction of the syariah courts’.46

The constitutional right to equality must also be read against Article 153 which allows the federal and state governments to safeguard the special position of the Malays and the natives of Sabah and Sarawak by reserving lands, positions in public service, places in educational institutions, scholarships, permits and licences for businesses, for these preferred ethnic groups.

In the wake of the racial riots in May 1969 that were sparked by the inflammatory speeches made by various politicians, and also compounded by the perceived disparity in wealth between the poorer Malay majority and the wealthier Chinese minority, the Malaysian government implemented the New Economic Policy that provided greater affirmative action for the social and economic advancement of ethnic Malays. A constitutional amendment was also passed in 1971, now found in Article 10(4) of the Constitution, to authorize Parliament to pass any law prohibiting the questioning of any matter relating to the constitutional provisions concerning citizenship, the national language, the special privileges accorded to the Malays and the natives of Sabah and Sarawak, and the sovereignty of the Rulers, though one may question the implementation of these provisions.47

It is also significant that Article 149 authorizes any statutory measures passed to counter organized violence, public disorder, or racial disharmony, (p.47) notwithstanding any derogation from certain constitutional rights of due process, right to free expression and assembly, right to movement, and right to property, if Parliament observes the requisite drafting formula provided within Article 149 when passing such legislation. The Internal Security Act (ISA) was passed pursuant to Article 149; it allowed for the government to detain persons for up to two years without trial, and the detention period was renewable ad infinitum. The ISA was however repealed in 2012, and it is replaced with the Security Offences (Special Measures) 2012 Act (SOSMA), which allows the police to detain suspects for up to 28 days and subjects the detention to judicial oversight.

Article 150 also authorizes the King, on the advice of the Government, to issue a Proclamation of Emergency when he is satisfied that a grave emergency exists in any part of the federation. Any Ordinances promulgated in these circumstances may derogate from all constitutional rights except those relating to religion, citizenship, or language. Since 1957, there have been four such Proclamations and the last one was invoked in 1977.48 A constitutional amendment was also introduced in 1981 to oust the court’s jurisdiction to determine any question concerning any Proclamation or any Ordinance promulgated pursuant to it.49 It is noteworthy that these Emergency Proclamations were only officially lifted in 2011.

F. Constitutional Amendment Procedures in Malaysia

Four methods of amending the Constitution are provided in Article 159. First, any amendments to the constitutional provisions concerning the Conference of Rulers,50 citizenship,51 the Malay National Language,52 the special privileges of the Malays, and the natives of Sabah and Sarawak,53 and some provisions pertaining to the Rulers and the King54 require the support of at least two-thirds of the total number of members in each House of Parliament and the consent of the Conference of Rulers.55 Notably, any amendments to Article 10(4) that authorize Parliament to pass any law prohibiting the questioning of any matter relating to the constitutional provisions concerning citizenship, the Malay National Language, the special privileges of the Malays, and the natives of Sabah and Sarawak, and the Rulers’ sovereignty are also subject to this amendment procedure.

(p.48) Secondly, any amendments to the constitutional provisions that provide certain safeguards for the states of Sabah and Sarawak may not be passed unless they receive the support of at least two-thirds of the total number of members in each House of Parliament and the concurrence of the Governor of the state concerned.56 Such safeguards include their right to Malaysian citizenship, the special treatment of their natives, matters which their state legislatures may legislate on, and the financial arrangements between the federation and these states.

Thirdly, the most common procedure applicable for an amendment is provided in Article 159(3) of the Malaysia Constitution and such amendments require the support of at least two-thirds of the total number of members in each House of Parliament. The fundamental liberties enshrined in Part II of the Constitution are generally subject to this amendment procedure. Interestingly, any amendments to laws passed under Article 10(4), as discussed above, are also subject to this onerous amendment procedure.

Finally, a few constitutional amendments may however be passed by ordinary law in Parliament.57 These include amendments to supplementary provisions on citizenship,58 forms provided on oaths and affirmations,59 the election procedure for Senators,60 and the admission of new states to the federation.61

III. Singapore

A. Constitutional History of Singapore

The modern history of Singapore can be traced to 1819 when Sir Stamford Raffles claimed this small island for the British East India Company.62 From 1826, Singapore, alongside Malacca and Penang in present-day Malaysia, were administered jointly as the Straits Settlements. With the abolishment of the East India Company in 1858, the British colonial government assumed (p.49) immediate supervision of the Straits Settlement and this state of affairs lasted till 1942 when the British surrendered to the Japanese armed forces during World War II.

After the British resumed control of Singapore in 1945, they decided that the Straits Settlement should be dissolved and Singapore administered as a separate Crown Colony. This policy took effect in 1948 when Singapore’s own Constitution, the Singapore Colony Order-in-Council, came into force. In 1953, the British government established the Rendel Commission to recommend constitutional changes in Singapore; this culminated in the implementation of a new Constitution, known popularly as the Rendel Constitution, in 1955, which allowed for 25 elected members in a 32-member legislative council, of which six elected members could serve on the Council of Ministers. Subsequently, after protracted negotiations, the British Parliament passed the State of Singapore Act in 1958, thereby transforming the colony formally into a self-governing state. A new legislative assembly was established, composed of 51 elected members and headed by a prime minister. The British government, however, retained control over defence and external affairs.

The People’s Action Party (PAP) won 43 of the 51 seats in the first general legislative elections, and its leader, Lee Kuan Yew, became Singapore’s first Prime Minister in 1959. Soon after its electoral success, the PAP began to campaign for a merger between Singapore and its northern neighbour, the Federation of Malaya. This move was prompted by the government’s desire to achieve political independence from the British and to anchor Singapore’s economic survival to a rich hinterland. The proposal for an enlarged Malaysian federation was accepted by the British on condition that the military bases in Singapore remain under British control and that the people living in the various territories were in favour of such a union. In Singapore, 71 per cent of the electorate voted in favour of a merger. The Federation of Malaysia would compose of the states of Singapore, North Borneo, Sarawak, and the existing states of the Federation of Malaya. Singapore formally joined the federation in September 1963. Under the agreement reached, the federal government in Malaysia would manage Singapore’s internal security, defence, and foreign affairs, but Singapore’s daily administration would be left to the state government.

The merger proved to be short-lived as relations between the Malaysian federal government and the Singapore state government soon soured over the perceived interference of the PAP in federal politics and Singapore’s apparent non-compliance with federal mandates. These internal politics within the federation were played out against the backdrop of communist threats and communalistic strife, which eventually convinced the (p.50) Malaysian Prime Minister to expel Singapore from the federation in August 1965.

Singapore’s independence was effected by a series of constitutional changes. The Republic of Singapore Independence Act (RSIA) vested the legislative and executive powers, relinquished by Malaysia, in Singapore’s legislature and executive. It also extended the application of certain provisions of the Malaysian Federal Constitution, for example fundamental liberties, to Singapore. The Constitution of Singapore (Amendment) Act was also passed to bring the Singapore State Constitution in line with its new found independent status and to allow for a simple majority in the legislature to make any constitutional changes. Therefore in 1965, Singapore’s Constitution was to be found in three separate documents: the RSIA, the State Constitution of Singapore (and its amendments), and the applicable provisions of the Malaysian Federal Constitution. This untidy state of affairs was to persist till 1979 when a constitutional amendment was passed to authorize the Attorney General to make such necessary or expedient modifications, and publish a consolidated reprint of the Singapore Constitution. The amendment process for the Constitution was also changed, such that a two-thirds majority in Parliament would be required for future constitutional amendments.

B. Singapore Legislature

Singapore has a unicameral legislature. Currently, its Parliament is composed of 87 elected members returned, on a first past the post basis, at general elections that have to be held at least every five years.63

Singapore’s electoral system is unique so far as it provides for both single-member constituencies and multi-member group constituencies in the Parliamentary elections. Such multi-member group constituencies are known as Group Representative Constituencies (GRC) and each GRC is formed by merging several single wards into one mega-constituency; all the electoral candidates in a GRC currently contest in teams composing of four to six persons and each elector would cast one vote for the team he or she supports. The GRC model was first introduced, following a constitutional amendment in 1988, ostensibly to ensure racial diversity in Parliament as at least one team member must be an ethnic minority. Initially, each GRC would be composed of only three members. But, in 1991, this was increased to four; and later in 1996, the ceiling was raised to six. While the entrenchment of minority representation in Parliament is a laudable political end, the (p.51) integrity of this justification is undercut by the expansion of the GRC size. In fact, the GRC system is widely perceived to be merely an electoral mechanism for the ruling party, the People’s Action Party, to ensure the election of new promising but unknown candidates with Ministerial calibre by fielding them in GRC teams alongside party stalwarts with mass electoral appeal. Currently, there are 12 Single Member Constituencies (SMCs) and 15 GRCs in Singapore. In the last general election held in 2011, the PAP won 81 of the 87 elected seats, but it is noteworthy that it lost a GRC for the first time to an opposition party. In a by-election held in 2013, the PAP lost another seat to the Workers’ Party, the main opposition party in Singapore. Nevertheless, the PAP has been the ruling party in Singapore since its independence; and since 1968, the PAP has controlled over 90 per cent of the elected seats in Parliament. Anti-hopping provisions are entrenched in the Constitution that provides for the vacation of a seat in Parliament when the elected member ceases to be a member of the political party for which he or she stood in the elections.64

Besides the elected members of Parliament, the Constitution also provides for up to nine opposition party members to be appointed as Non-Constituency Members of Parliament (NCMP).65 These NCMPs must be composed of defeated opposition party candidates who garnered the highest percentage of the popular vote in the prior general elections, but not less than 15 per cent of the total number of votes in the constituency. Furthermore, up to nine Nominated Members of Parliament (NMP) who are nonpartisan citizens that have distinguished themselves in the fields of arts and letters, culture, the sciences, business, industry, the professions, social or community service, or the labour movement, can be appointed by the President on the recommendation of a Parliamentary Special Select Committee to foster greater Parliamentary debate and ensure a wide representation of community views in Parliament.66 It is noteworthy that both groups of non-elected Members of Parliament may not vote on the budget or appropriation bills, bills to amend the constitution, or motions of no confidence in the government.67

C. Singapore Executive Government

The Prime Minister is the head of the administration in Singapore, and he or she is usually the leader of the political party that wins the most elected seats at the general election. The Prime Minister is assisted by his or her cabinet of (p.52) Ministers and all Ministers in Singapore are concurrently elected members of Parliament.

In 1991, the Constitution was amended to introduce an Elected Presidency.68 Prior to this, the President was a ceremonial head of state chosen by Parliament; now, the President is elected by the people directly and he or she serves for a term of six years. The Elected President is vested with a degree of independent, executive powers to withhold assent to certain money bills that draw on the nation’s financial reserves69 and to veto key public officer appointments, such as Supreme Court judges, the Attorney General, the Chief of the Defence Force, members on the Presidential Council of Minority Rights etc.70 made by the government of the day. The Elected President exercises only reactive powers and was conceived as an institutional check on any errant future governments that may raid the nation’s coffers to buy popularity or pack the public service with its cronies. One must however note that the Presidential veto herein is only absolute if it is exercised in tandem with the recommendations of the Council of Presidential Advisors.71 Otherwise, the veto may be overridden by a two-thirds Parliamentary majority.72 The President also has the power to veto restraining orders and detention orders issued by the government under the Maintenance of Religious Harmony Act and the Internal Security Act respectively, but his or her veto is only effective if it concurs with the recommendations of the administrative tribunal that oversees the operation of the legislation in question.73

The qualifications that a presidential candidate must meet are extremely stringent. Under Article 19(2) of the Constitution, a presidential candidate must have held key public or private office appointments such as cabinet minister, chief justice, chairman, or chief executive officer of a company with a paid-up capital of at least 100 million Singapore dollars. The Presidential Elections Committee (PEC)74 may in its discretion make (p.53) exceptions if it believes that the presidential candidate has occupied comparable positions of seniority and responsibility in other organizations of equivalent complexity.

D. Singapore Judiciary

Article 93 of the Constitution vests the judicial power of Singapore in the Supreme Court and the subordinate courts created by law. The Supreme Court consists of the Court of Appeal and the High Court. Prior to 1993, the Privy Council sitting in London was the highest appellate court in Singapore, but such ties have since been cut, and the Singapore Court of Appeal is now the nation’s court of final resort. The Court of Appeal is presided by the Chief Justice and it usually hears appeals in panels comprising of three members. The courts in Singapore are empowered under Article 4 of the Constitution to invalidate any legislative provision that is inconsistent with the nation’s supreme law.

As discussed earlier, the Chief Justice, the Judges of Appeal, and the Judges of the High Court are appointed by the President if he or she, acting in his or her discretion, concurs with the advice of the Prime Minister.75 Judicial independence is secured under the Constitution to the extent that a Supreme Court judge, once appointed, has tenure until he or she reaches the age of 6576 and the judge’s remuneration may not be altered adversely after his or her appointment.77 It is also noteworthy that the term of office of a Supreme Court judge may be extended contractually when he or she reaches 65; the subordinate court judges in Singapore do not have tenure and they may be transferred between appointments in the executive or judicial branches as decided by the Judicial Service Commission headed by the Chief Justice. The Constitution also allows for the appointment of temporary judges on the Supreme Court, known as Judicial Commissioners, to facilitate the disposal of business in the Supreme Court, and they exercise the same powers as Supreme Court judges.78

Pursuant to Article 100 of the Constitution, the President may also refer to a tribunal consisting of not less than three Judges of the Supreme Court for its advisory opinion on any question as to the effect of any provision of the Constitution that has arisen or appears to him or her likely to arise.

(p.54) E. Fundamental Liberties in Singapore

Fundamental liberties in Singapore are enshrined in Part IV of the Singapore Constitution. These rights include the freedom from slavery or forced labour, the right not to be criminally sanctioned by retrospective criminal laws, the right to equality, the freedom of speech and assembly, and the freedom of religion. While most constitutional rights are guaranteed to all persons, the freedom of expression and assembly is only guaranteed to Singapore citizens.

Article 149 authorizes any statutory measures passed to counter organized violence, racial disharmony, or security threats, notwithstanding any derogation from the constitutional rights of due process, right to free expression and assembly, right to movement, and right to equality, if Parliament observes the requisite drafting formula provided within Article 149 when passing the legislation. This ‘notwithstanding’ clause was only added, by a 1989 constitutional amendment, in response to the Singapore Court of Appeal’s decision79 that it was constitutionally required for the judges to objectively review the Ministerial exercise of discretion to detain personnel under the Internal Security Act, a piece of legislation passed pursuant to Article 149 of the Constitution.

Article 152 also provides that it shall be the responsibility of the Government constantly to care for the interests of the racial and religious minorities in Singapore. Specifically, the Government has to recognize the special position of the Malays who are the indigenous people of Singapore; and accordingly, it shall be the responsibility of the Government to protect, safeguard, support, and promote their political, educational, religious, economic, social and cultural interests, and the Malay language. To these ends, the Constitution provides for the establishment of a Presidential Council of Minority Rights (PCMR) whose function is to report on any legislative bill or subsidiary legislation which it perceives to be a differentiating measure that affects persons of any racial or religious community in Singapore.80 Notwithstanding an adverse report from the PCMR, a differentiating bill may still be presented to the President for his or her assent if two-thirds of the total membership of Parliament so concur.81 The PCMR also has no powers to review any money bills, any bill certified by the Prime Minister as being one that affects the defence or the security of Singapore or that relates (p.55) to public safety, peace, or good order in Singapore, or a bill certified by the Prime Minister to be so urgent that it is not in the public interest to delay its enactment.82 These broad exemptions essentially afford the Prime Minister much latitude to bypass the PCMR if he or she so chooses. In any case, to date, the PCMR has never issued an adverse report on any legislative bill or subsidiary legislation in Singapore.

F. Constitutional Amendment Procedures in Singapore

Most provisions in the Singapore Constitution can be amended with the concurrence of at least two-thirds of the total number of elected legislators in Parliament.83

In 1972, a constitutional amendment was passed to prohibit any surrender, either wholly or in part, of the sovereignty of Singapore as an independent nation, whether by way of merger or incorporation with any other sovereign state or federation, unless such surrender or relinquishment has been supported by not less than two-thirds of the total number of votes cast in a national referendum.84

Interestingly, two novel constitutional amendment procedures were introduced in 1991 and 1996. The first, Article 5(2A) provides that, unless the President concurs, any bill that seeks to amend provisions in Part IV (clauses protecting fundamental liberties), Part V, Chapter 1 (clauses on the Presidency), Articles 65 and 66 (clauses on the general elections and the dissolution of Parliament) must be passed by Parliament and also be supported by not less than two-thirds of the total number of votes cast in a national referendum. The second, Article 5A, provides that the President may veto any constitutional amendments, apart from those implicating Article 5(2A), which circumvent or curtail, directly or indirectly, the discretionary powers he or she possesses under the Constitution. However, if the advisory tribunal established under Article 100 is of the view that the amendments do not curtail the Presidential discretionary powers, he or she would be deemed to have assented to the amendments. If the tribunal upholds the President’s views, these amendments may only be passed with the support of at least two-thirds of the total number of votes cast in a national referendum. However, despite the introduction of both amendment procedures, they remain inoperative in Singapore as the government considers this amendment scheme a work-in-progress, and it has no immediate plans to bring these two provisions into force. (p.56)

Notes:

(1) For more information, see Yash Ghai, Hong Kong’s New Constitutional Order (2nd edn, Hong Kong, Hong Kong University Press 1999) 1–80; Johannes Chan & CL Lim, The Law of the Hong Kong Constitution (Hong Kong, Sweet & Maxwell 2011) 5–33; Albert Chen, ‘From Colony to Special Administrative Region: Hong Kong’s Constitutional Journey’ in Raymond Wacks (ed), The Future of the Law in Hong Kong (Hong Kong, Oxford University Press 1989).

(2) Hong Kong Basic Law, Article 12.

(3) Ibid. Article 18. Some of these National Laws include the Resolution on the Capital, Calendar, National Anthem, and National Flag of the People’s Republic of China; the Resolution on the National Day of the People’s Republic of China; and the Declaration of the Government of the People’s Republic of China on the Territorial Sea.

(4) Ibid. Article 5.

(5) For a critique on the FC system, see Simon Young & Anthony Law, ‘Privileged to Vote: Inequalities and Anomalies of the FC System’ in Christine Loh (ed), Functional Constituencies: A Unique Feature of the Hong Kong Legislative Council (Hong Kong, Hong Kong University Press 2006) 59.

(6) See Ibid. 98–9.

(7) Ma Ngok, ‘Political Parties and Elections’ in Lam, Lui, Wong, & Holliday (eds), Contemporary Hong Kong Politics: Governance in the Post-1997 Era (Hong Kong, Hong Kong University Press 2007) 117, 131–2. See also Sonny Lo, Competing Chinese Political Visions (Santa Barbara, Praeger 2010) 130–1.

(8) See ‘Poll Creates Stumbling Block for Leung’ South China Morning Post (Hong Kong, 11 September 2012) 1.

(9) Hong Kong Basic Law, Article 46.

(10) Ibid. Article 48.

(11) Ibid. Annex I.

(12) See Hong Kong Basic Law, Article 55.

(13) Ibid.

(14) Ibid. Article 82.

(15) Ibid. Article 8.

(16) Ibid. Article 88.

(17) See Richard Swede, ‘One Territory—Three Systems? The Hong Kong Bill of Rights’ (1995) 44 International and Comparative Law Quarterly 358–78.

(18) Bill of Rights Ordinance (Cap 383), Article 3.

(19) Hong Kong Basic Law, Article 28.

(20) Bill of Rights Ordinance (Cap 383), Article 14.

(21) Hong Kong Basic Law, Article 30.

(22) For more information, see Tan Sri Mohammed Suffian, An Introduction to the Constitution of Malaysia (Kuala Lumpur, Di-chetak di-Jabatan Chetak 1972); Sheridan & Groves, The Constitution of Malaysia (4th edn, Singapore, Malayan Law Journal 1987); Rais Yatim, ‘The Road to Merdeka’ in Andrew Harding & HP Lee (eds), Constitutional Landmarks in Malaysia: The First Fifty Years 1957–2007 (Kuala Lumpur, LexisNexis 2007). See also Andrew Harding, The Constitution of Malaysia: A Contextual Approach (Oxford, Hart Publishing 2012).

(23) The Government of the State of Kelantan v The Government of the Federation of Malaya (1963) 29 MLJ 355 (Federal Court of Malaysia).

(24) See Part VI of the Malaysia Constitution read with the Ninth Schedule.

(25) Malaysia Constitution, Article 55(3).

(26) Ibid. Article 45(1)(a).

(27) Ibid. Articles 45(3), 45(3A).

(28) Ibid. Article 68(1).

(29) Ibid. Article 68(2).

(30) Ibid. Article 159(3).

(31) Where the Conference of Rulers cannot reach a unanimous decision, the decision taken by a majority of the members voting shall prevail, though the King may only be removed from office with at least five votes. See also Third and Fifth Schedules of the Malaysia Constitution.

(32) Malaysia Constitution, Article 38(6)(c).

(33) Ibid. Article 159(5).

(34) For a fuller discussion, see HP Lee, Constitutional Conflicts in Contemporary Malaysia (Kuala Lumpur, Oxford University Press 1995).

(35) Malaysia Constitution, Article 183.

(36) These developments will be discussed more comprehensively in Chapter 4.

(37) Malaysia Constitution, Article 128(1).

(38) Ibid. Article 121(1A).

(39) Ibid. Article 122(B)(1).

(40) Ibid. Articles 125(1), 125(9).

(41) Malaysia Constitution, Articles 125(7), 125(9).

(42) Ibid. Articles 125(3), 125(9).

(43) Ibid. Article 138.

(44) Ibid. Article 122AB.

(45) Malaysia Constitution, Article 3(1).

(46) Ibid. Article 121(1A).

(47) Ibid. Article 10(4).

(48) For more information on the history of the four Proclamations, see Andrew Harding, Law, Government and the Constitution of Malaysia (The Hague, Kluwer Law International 1996) 160–3.

(49) Malaysia Constitution, Article 150(8).

(50) Ibid. Article 38.

(51) Ibid. Part III.

(52) Ibid. Article 152.

(53) Malaysia Constitution, Article 153.

(54) Ibid. Articles 70, 70 (1).

(55) Ibid. Article 159(5).

(56) Ibid. Article 161E(2).

(57) Malaysia Constitution, Article 159(1) read with Article 159(4)(a).

(58) Ibid. Part III of 2nd Schedule.

(59) Ibid. 6th Schedule.

(60) Ibid. 7th Schedule.

(61) Ibid. Article 159(4)(bb). This clause is subject to Article 161E which enshrines the constitutional safeguards for Sabah and Sarawak.

(62) For a more extensive study of Singapore’s constitutional history, see Kevin Tan, ‘A Short Legal and Constitutional History of Singapore’ in Kevin Tan (ed), The Singapore Legal System (Singapore, National University of Singapore Press 1999) 26–66. See also Victor Ramraj & Po Jen Yap, ‘Singapore’ in Gerhard Robbers (ed), Encyclopedia of World Constitutions (New York, Facts on File 2007) 817.

(63) Singapore Constitution, Article 65(4).

(64) Singapore Constitution, Article 46(2)(b).

(65) Ibid. Article 39(1)(b).

(66) See Singapore Constitution, Article 39(1)(c) read with 4th Schedule.

(67) Singapore Constitution, Article 39(2).

(68) See also Kevin Tan, ‘The Presidency in Singapore: Constitutional Developments’ in Tan & Lam, Managing Political Change in Singapore: The Elected Presidency (New York, Routledge 1997) and Li-ann Thio, ‘Singapore: (S)electing the President—Diluting Democracy?’ (2007) 5 International Journal of Constitutional Law 526.

(69) Singapore Constitution, Article 21(2).

(70) Singapore Constitution, Article 22.

(71) The Council of Presidential Advisers is composed of six members: two are appointed by the President acting in his own discretion, two are appointed by the President on the advice of the Prime Minister, one is appointed by the President on the advice of the Chief Justice, and one is appointed by the President on the advice of the Chairman of the Public Service Commission. See Singapore Constitution, Article 37(B).

(72) Singapore Constitution, Article 22(2).

(73) Ibid. Article 22I; ibid. Article 151(4).

(74) Ibid. Article 18(2) provides that the PEC shall consist of the Chairman of the Public Service Commission, the Chairman of the Accounting and Corporate Regulatory Authority and a member of the Presidential Council for Minority Rights nominated by the Chairman of that Council.

(75) Singapore Constitution, Article 95(1).

(76) Ibid. Article 98(1).

(77) Ibid. Article 98(8).

(78) Ibid. Article 94(4).

(79) Chng Suan Tze v Minister of Home Affairs (1988) 2 SLR 132 (Singapore Court of Appeal). Chapter 4 will elaborate on the origins and development of this saga.

(80) Singapore Constitution, Articles 76, 77. The Constitution provides that the PCMR shall consist of a Chairman appointed for a period of three years, up to ten members appointed for life, and up to ten members appointed for a period of three years. There are currently 16 members on the PCMR and it is chaired by the Chief Justice.

(81) Ibid. Article 78(6)(c).

(82) Ibid. Article 78(7).

(83) Ibid. Article 5(2).

(84) This amendment is now found in Singapore Constitution, Article 6.