CONSTITUTION (AMENDMENT) BILL

Order for Second Reading read.

3.02 p.m.

The Minister for Law and National Development (Mr E. W. Barker): Mr Speaker, Sir, I beg to move, "That the Bill be now read a Second time."

Sir, the Bill now before the House introduces two amendments to the Singapore Constitution. Clause 2 of the Bill seeks to introduce a new Part A of the Constitution, and as Members will see it makes provision for the Judiciary. This branch of Government is missing from the Singapore Constitution in its original form because the Order in Council setting out the Constitution envisaged Singapore as a state within the Federation of Malaysia, the judicial power was a Federal matter and was therefore set out in the Federal Constitution. Now that we have become independent on our own, this obvious hiatus in our Constitution is being provided for. This amendment comes at an appropriate moment accompanying the Supreme Court of Judicature Bill which would set out in detail the judicial structure in Singapore. In so far as the Judiciary is a separate branch of Government, it has to be set out separately and enacted in this Part of the Constitution.

Clause 3 of the Bill sets out more radical provisions. The new Part IVa of the Constitution deals with the setting up of the Presidential Council. Hon. Members will remember that amongst the various suggestions made by the Wee Chong Jin Report on constitutional provisions for the protection of minority rights in the Republic was this recommendation, namely, the setting up of a Council of State to act as an extra Parliamentary safeguard for the protection of minority rights. Members will also recall the speech I made to this House on the Constitutional Report on 21st December, 1966, when I informed the House that among the various recommendations in regard to the protection of fundamental rights and freedoms of the individual and the manner in which various provisions of the Constitution ought to be entrenched, the Government would agree with this recommendation of a Council of State. I had also told the House that although we would differ in detail, in principle we agreed to such a Council being established. Instead of calling this Council the "Council of State", the Government has decided to name it the "Presidential Council", a term we consider more suitable and more appropriate.

The Council would consist of a Chairman and ten permanent members appointed for life and ten other members appointed for various periods up to a maximum of three years. As set out in the Explanatory Note, the functions of the Council will be principally to consider and report on matters affecting persons of any racial or religious community in Singapore as may be referred to it by Parliament or by the Government. The Council is also to examine all Bills and subsidiary legislation to ensure that no provisions in our laws would result in unfair discrimination against or otherwise violate any fundamental liberties of the individual set out in our Constitution.

It has been argued by some that such a chamber as the Presidential Council comprising non-elected members would be a derogation of the supremacy of Parliament. We have been careful to ensure that this will not be so. In the normal course of events, the Council can only delay the passage of a Bill for s period of one month. But as Members will appreciate, if the Presidential Council is to play its role as a checkpoint to safeguard the rights of the individual, it must have certain powers. Although Members of the Government may be allowed to attend meetings of the Council and to take part in its deliberations, they will not join in reaching its decisions.

The functions of the Council will not be confined solely to the scrutiny of Bills enacted by Parliament. Subsidiary legislation as may be made under the authority of an Act of Parliament would come within the purview of the Council, to see whether a particular provision even in subsidiary legislation amounts to a "differentiating measure" or in any other way violate the fundamental liberties of the subject. Whilst it has no power to veto any legislation and so diminish the supremacy of our elected legislature, it does draw public attention to any proposal which it considers discriminatory of any minority group. So any government of the day has to consider the odium it would incur publicly for enforcing majority rule to the disadvantage of a minority, although this is normal democratic practice.

[Mr Deputy Speaker in the Chair]

3.12 p.m.

The Minister for Law and National Development (Mr E. W. Barker): However, certain Bills must of necessity be excluded from the purview of the Council such as Money Bills or indeed any Bill certified by the Prime Minister to be so urgent that it would not be in the public interest to delay its enactment.

These and similar provisions do not seriously affect the supremacy of Parliament. It is hoped that far from derogating from the supremacy of Parliament, members of the Council will carry out their functions in the spirit and intendment of this Bill, namely, to assist Parliament in its consideration of Acts of Parliament and ensure that such Acts or other enactments made under the authority of Acts of Parliament are fair and undiscriminating in their effects to all the various peoples in our Republic. In this way it is the hope that confidence and a sense of security and a sense of more than fair play will be engendered throughout the community.

Sir, in view of the considerable public interest in this Bill, I intend to send it to a Select Committee.

Mr Deputy Speaker, Sir, I beg to move.

Question proposed.

3.15 p.m.

Prof Wong Lin Ken (Alexandra): Sir, I rise to speak on the Constitution (Amendment) Bill, a subject of compelling concern to all those, within and without Parliament, who believe that a multi-racial society, with a diversity of cultures, can be organized on a rational basis that denies no race equal opportunities in life.

We are not the only multi-racial nation on earth, and the Government is certainly not the first government faced with the all-important problem of finding an appropriate national framework by which multifarious races can live and work together in peace and harmony, respect and tolerate each other's differences and share, at the same time, an identity of nationhood. To take some liberty with a proverbial expression, the political harvests which a nation reaps depend on the way in which it has sowed the seeds of nationhood on ground fertile for politics along communal lines. As a historian by profession, I would like to quote history - history is replete with examples of violent political harvests that can only sow seeds of further bloody discord.

In examining the evolution of the present constitutional amendment for the creation of a Presidential Council, I note that the Constitutional Commission of 1966 made the following recommendation, and I quote page 4, paragraph 16, of its Report:

'We recommend the creation of a non-elected advisory body to be called "the Council of State" with a small membership, not subject to dissolution but renewing itself at regular intervals by the retirement and replacement of a proportion of its members in rotation. The members should be appointed by the President after consultation with the Prime Minister but in the President's discretion from amongst able, mature citizens irrespective of race, colour or creed who have attained eminence or responsible positions in their respective walks of life but who are not members of any political party. We believe such a body can play an effective and vital part in the affairs of the nation in many ways. It will be able in its debates to focus the attention of the public on any matter originating from Parliament which may adversely affect the interests of any minority group. It will also be able to serve as an additional check on new legislation and this would be particularly useful on matters of great public importance and on matters which might affect the minorities. Also, it will be able, especially where there is no responsible or effective Opposition in Parliament, to put forward where it considers it necessary in the public interest to do so, constructive and well-informed criticism or amendments of measures proposed in Parliament.'.

Mr Deputy Speaker, Sir, it will be recalled that nowhere in the Constitutional Commission Report did it propose that the interests of the minority races in Singapore be secured or protected in the form of constitutional entrenchment of minority rights over and above those enjoyed by the majority race. Indeed, it considered minority representation in Parliament or in an Upper House, or proportional representation, as constitutional measures that would defeat their very objective and intensify politics along communal lines.

The Constitutional Commission believed, and I am of the view that history will vindicate its belief, that minority interests would be best secured and protected if minority groups enjoyed the same fundamental rights as the majority race. Its belief and faith in a non-racial Constitution of Singapore evidently was derived from the political foresight and common sense of its members, and reflected their belief that the various races in Singapore were increasingly aware that (and I quote page 3, paragraph 10 of the Report):

'their future and the future of the nation lies in a non-racial approach to all problems under a form of government which would enable the growth of a united, multi-racial, free and democratic nation in which all its citizens have equal rights and equal opportunities.'

On 27th August, 1966, the Commission presented its Report to the President. The Report was tabled in this Parliament in December 1966 and debated in March 1967. Most of the recommendations of the Commission were accepted by the Government, and in many others the Government accepted the principle but not the details.

Sir, slightly more than two years have elapsed between the last debate on the Report of the Constitutional Commission and the present Reading of the Constitution (Amendment) Bill, and the public has adequate time to digest and ingest the Report and the basic views of the Government on it. In the interim, the present Government had its mandate to govern renewed, and had, to the astonishment of the world and to its own political embarrassment, won every single parliamentary seat. I attach some special significance to this, for in a state predominantly Chinese in racial composition, neither the extreme right nor left Chinese parties had wanted to test their strength with a multi-racial party, leaving it an almost uncontested arena to assume power for a third time in succession. The Constitutional Commission of 1966 in retrospect had not misjudged the political mood of the races in Singapore.

The proposed Presidential Council reflects the intention, the purpose, and the spirit of the Council of State recommended by the Constitutional Commission. As recommended, it is an advisory body, and leaves untouched the present unicameral legislature. It also does not infringe upon the responsibilities of Parliament.

Sir, it is a fundamental principle of parliamentary democracy that the supremacy of Parliament remains paramount. In my opinion, there is nothing in the proposed Presidential Council that undermines this principle. It is correct that the Presidential Council shall only be empowered to examine the Bills after the elected representatives of the people have studied, debated and passed them, for I regard intervention of the Council before the final Reading as encroachment upon the responsibilities and privileges of Parliament. To allow the Presidential Council to intervene at any earlier stage of parliamentary Reading of the Bills is to permit it to exercise an influence in the legislature, at the time that the Members Of Parliament should be sensitive to public opinion and form their own independent judgment as to what parliamentary measures will be for the public good and supportable by the electorate. The Presidential Council's report of any Bill or subsidiary legislation is advisory in character, and it is not mandatory on the part of Parliament to accept it, and can be over-ridden if a two-thirds majority of parliamentary Members so decide. However, I should imagine no Parliament can lightly disregard or dismiss the view of the Presidential Council unless there be over-riding reasons for not acting on its advice. The two-thirds majority rule is an adequate safeguard against any infringement of the supremacy of Parliament, at the same time against disrespect of the Presidential Council.

I think it has been both consistent with parliamentary principles and the proper functioning of the Presidential Council that its proceedings be conducted in private. Privacy of proceedings safeguards its members from the intimidating pressure of communal public opinion as well as removes any possibility of playing to the communal gallery. As regards its lack of right to hear objectors or examine witnesses, I am of the view that this will not impair the efficiency and efficacy of the Presidential Council. The right to hear objectors or witnesses rightly belongs to Parliament, either in the chambers of Select Committees or parliamentary commissions of inquiry.

There is criticism from many quarters that there should be an Opposition to the present Government. The Constitutional Commission of 1966 had reported that the Council of State might act as a check on Parliament in an advisory manner in the absence of responsible or effective Opposition. It is, in my view, correct that there is no possibility of the proposed Presidential Council developing in a way that might give substance to such a view of its function. An Opposition is regarded as a desirable factor that keeps the parliamentary system alive, but the lack of it does not mean the destruction of the essence of democracy. For in the democratic process, the electorate can collectively decide to vote a political party entirely out of Parliament, as had happened to the Singapore Alliance in 1963. Equally, it can entirely vote a political party to all the seats in Parliament - this happened to us in 1968.

[Mr Speaker in the Chair]

3.27 p.m.

Prof Wong Lin Ken (Alexandra): Mr Speaker, Sir, we have never said that there should be no Opposition in Parliament. But we cannot molly-coddle an Opposition into existence, directly or indirectly, for this will be against the national survival of Singapore. There is only one route to Parliament, and that is by way of elections. The road to Parliament is raw and rough, not for those who want political glamour the easy way. Only those with the will to succeed, sustained by tenacity of purpose and, hopefully, integrity of intentions, will eventually make the grade. Finally, Mr Speaker, Sir, there is an organized Opposition in Singapore, a fact some choose to ignore, but it has decided to pursue the path of extra-parliamentary Opposition, as some of my parliamentary colleagues had vividly found when their branch headquarters were attacked.

Mr Speaker, Sir, the multi-racialism which this Parliament stands for requires time before its values, beliefs, and practices become irrevocably institutionalized. No constitution or constitutional amendments of any kind, however ingeniously devised by the wisest men on earth, can guarantee that a constitution will survive the turbulent realities of politics. No constitution can guarantee that minority interests will not suffer or that the majority will not exercise its will in a discriminating way. There is a popular mystique about the sanctity and inviolability of a constitution. This is true of those countries where democratic institutions have evolved over a long period of history, and the political values of democracy are firmly a part of the cultural traditions of the people.

Unfortunately, post-war history is abundant with evidence that democratic constitutions by themselves do not make for democratic processes nor ensure their own survival. In the last analysis, all depends on the people who participate in politics - their outlook and their beliefs. If this is true of democracy, it is even more so for any constitutional provision for minority interests. Ultimately, the greatest safeguard for minority interest in Singapore lies not in any constitutional provision but in the continued election of people to Parliament who believe in and practise multi-racialism.

Mr Speaker, Sir, we in this Parliament believe in multi-racialism, and what Singapore requires primarily is confidence that multi-racialism can work within the context of the stresses and strains of Southeast Asia, it is our duty and the duty of those who share our belief to prove to the people that the multi-racial system in Singapore can work as well as establish for our Republic a viable and enduring political identity. On our conduct as a political party, and on our administration as a government will the minority and the majority races judge us as to our multi-racialism. The existence of multi-racial Singapore is a daily referendum, and we have to win it every day.

Mr Speaker, Sir, I support the Constitution (Amendment) Bill as the constitutional expression of our declared faith in an equal multi-racial society, and our unequivocal intention to give substance and meaning to a nation in which all are equal regardless of differences of race, language, culture and religion.

3.30 p.m.

Mr Teong Eng Siong (Sembawang): (In Mandarin): Mr Speaker, Sir, I support the Constitution (Amendment) Bill, especially in regard to the establishment of a Presidential Council. I would like to congratulate the Minister on this, because the establishment of a Presidential Council is in line with the recommendation of the Constitutional Commission of 1966. Once again the Government has demonstrated that it intends to carry out whatever it has promised to do.

Mr Speaker, although we have been independent for only four years, the democratic system has worked very successfully in our country. This is due to the fact that, firstly, we have an efficient and honest government; secondly, our multi-racial society is accustomed to democratic practices. This can be seen in the last few elections held.

I feel that the various clauses in the Bill are appropriate. One of the provisions in the Bill stipulates that the Council should not take more than one month to examine a Bill passed by Parliament. This will ensure that all Bills passed by Parliament will be implemented smoothly.

However, I would like to offer two points for the consideration of the Minister. One is about the appointment of members to the Presidential Council. Secondly, the composition of the members of the Presidential Council must be multi-racial, 1 hope we can appoint people who have extensive social experience, and who are impartial and patriotic. I hope the Minister will pay attention to these points because the task of the Council is to look after the interests and rights of the minorities in Singapore.

3.35 p.m.

Mr L. P. Rodrigo (Serangoon Gardens): Mr Speaker, Sir, the multiracial texture of our society gives the Presidential Council a distinct role to play, but it is my feeling that this would depend ultimately on the composition of the Council. It is important to realise that one of the functions of the Council is to act as a body of constitutional interpretation, because, if I am not mistaken, Sir, the Bill before the House describes the functions of this proposed Council as being, first, advising Parliament on matters affecting minority rights and, second, drawing attention to Bills and statutory legislation which, in the eyes of the Council, appear to be inconsistent with the Constitution or with the fundamental liberties of the individual.

In respect of the second function of the Council, that is, to advise Parliament that certain legislation when in operation will be inconsistent with the Constitution or the fundamental liberties of the individual, this will require of the Council an expertise which is primarily legal, particularly an expertise in constitutional interpretation. We can say that such kind of expertise will obviously be lodged in very mature members of the legal profession, namely, the Chief Justice and Puisne Judges.

At this stage, perhaps I can refer the House to certain statements made by the Minister for Law and National Development when the Report of the Constitutional Commission was tabled before this House in 1966, and reported in Hansard, Volume 25, No. 14. The Minister for Law and National Development did suggest that perhaps eminent people like ex-Chief Ministers. Chief Justices and Puisne Judges could constitute such a Council. I wonder whether this will make the Council operate in the way that is obviously intended. Should such eminent people be appointed to this Council, they would be in an embarrassing position when legislation which is suspected of being inconsistent with the Constitution or the fundamental liberties of the individual is contested in the High Court for interpretation after the Council had decided unanimously or by a majority to submit an adverse report thereon to Parliament, and Parliament had thereafter overridden such adverse report by a two-thirds majority. Of course, this will only arise if there is such a spate of proceedings for constitutional interpretation in the High Court that we cannot avoid having the same Judges who had been involved in the deliberation on this legislation also taking part in the High Court proceedings. I am sure that the Minister is quite aware of this possibility, but if he will clarify this point, perhaps it might assist the House.

Secondly, I might ask, why is it that a two-thirds majority is required under the Bill to over-ride an adverse report from the Presidential Council? It appears that this would reflect a certain amount of consensus on the part of the Council. But this may raise another problem, for it may be said that such a two-thirds majority over-riding an adverse report from the Council is tantamount to an amendment of the Constitution. By our Constitution we need only an ordinary majority to amend it. I would not be able to answer this question. Would a two-thirds majority of the House over-riding an adverse report from the Presidential Council amount to an amendment of the Constitution? If it does mean an amendment to the Constitution, then, of course, to a certain extent, I agree with the opinion voiced outside that perhaps it might jeopardise the individuals who would not be able to contest this legislation in the High Court.

There is one other point which can perhaps be clarified by the Minister. The Bill that is before the House specifically excludes the consideration of evidence by witnesses and individuals by the Council. But what if the Council wish to consider written representations from any source? Would it be permitted to do this? These are points which perhaps the Minister could clarify.

3.44 p.m.

Mr N. Govindasamy: Mr Speaker, Sir, I too have to seek the Minister's indulgence in asking one pertinent question for clarification. Under the Constitution (Amendment) Bill - at page 2 -it is provided in clause (2) of the new Article 52B that temporary High Court Judges can be appointed. Can these temporary High Court Judges hear criminal cases where the penalty is death? If so, do they have the protection provided under the new Article 52F in the Constitution (Amendment) Bill?

3.45 p.m.

Mr Barker: Mr Speaker, Sir, first, may I remind Members that this is not Question Time? Apparently all four Members who spoke on the Bill support it not only in principle but in detail. The Member for Sembawang even congratulates me. But then he adds a rider to the effect that we had better be careful whom we appoint to the Presidential Council.

The Member for Serangoon Gardens has raised several pertinent points. He is worried about the expertise that would be required -- legal expertise in constitutional interpretation probably of documents of the law which would be required of its members. He is afraid that some of our Judges might be embarrassed should they be party to a decision of the Presidential Council which is over-ruled by a two-thirds, majority in this House; the same Judge having perhaps to decide the same point which may be an issue in the High Court.

Sir, perhaps to set the worries of the Members at rest, it would be best for me to refer again to my speech in this House on 21st December, 1966. I quote from Hansard, Vol. 25. No. 14, col 1055:

'Membership of this Council ... would be of two types -

(i) Permanent members: This would consist of men of distinction who will be chosen from those who hold or have held high offices, e.g. Cabinet Ministers, former Chief Ministers, the Chief Justice, the Speaker, the Chairman of the Public Service Commission, Puisne Judges, the Attorney-General and former Permanent Secretaries. There would be no age limit:

(ii) Members who are removable: Appointments would be on the advice of Cabinet and would be for a fixed period of, say, three years. Persons appointed would be mature citizens who have either rendered distinguished public service or attained eminence in their respective walks of life regardless of race, colour or creed as recommended by the Commission.'

Sir, surely we are not so short of digits in Singapore that we cannot find 20 men with the necessary legal expertise to sit on this Council and advise this House.

The Member for Serangoon Gardens has also asked why a two-thirds majority is required when the Constitution can be amended in this House without a two-thirds majority. Let me put it this way. Is the Presidential Council to sit, deliberate and finally send us its advice only to have such advice flung out by a simple show of hands? I do not think this is the way we should reject such advice in this House. The Council's advice must be considered with some respect and a two-thirds majority will ensure that not all its decisions, or perhaps very few, may be upset here and the advice not taken.

The Member for Serangoon Gardens has also enquired whether the Council can receive written representations. The answer is "Yes".

Sir, may I end by dealing with the inquiry made by the Member for Telok Blangah? He wants to know why we have made provision for the appointment of temporary Judges and whether these Judges can hear criminal cases which may attract capital punishment. The answer is "Yes, they can." In Singapore today we have acting Ministers who have full powers of the Minister who happens to be away. In the same way, an acting Judge of the High Court will have the same powers as any permanent Judge of that Court-the same powers to hear even the most serious criminal cases which attract capital punishment.

Question put, and agreed to.

Bill accordingly read a Second time.

Resolved. "That this Bill be committed to a Select Committee consisting of Mr Speaker as Chairman and seven Members to be nominated by the Committee of Selection."-[Mr Barker].

Mr Speaker: Order. I propose to take the suspension now and I will take the Chair again at fifteen minutes past four o'clock.

Sitting accordingly suspended at 3.55 p.m. until 4.15 p.m. Sitting resumed at 4.15 p.m.