- "If the Head of State challenges the government, he will be acting unconstitutionally. In the UK, the last time that was done was in 1642 by (King) Charles I. The King lost both his life and his throne for his troubles. Nowadays, of course, we deal with these issues through the courts."
Tuesday, August 16, 2011
Majority Party in Parliament v.s. President: Does an Appropriate Forum Exist?
In an interview with The New Paper on August 8, Law Minster K. Shanmugam said:
In public procurement, the accepted policy is that a procurement officer must recuse himself from participating in a decision of what to purchase if he/she has some personal interest in the outcome.
I believe that a similar issue may apply to the courts. While the Constitution does make provisions to promote the independence of the judiciary, the fact of the matter is that judicial appointees can be selected and confirmed based on considerations such as loyalty. While it is not obvious whether or not this is the case in Singapore, this can be seen clearly in other countries. In the United States of America, Supreme Court judges are picked and confirmed on this very basis, with a huge political focus on where a potential appointee stands on issues such as abortion.
It is from this that the question of what the right forum is for the resolution of conflicts between the majority party in Parliament and the Elected President arises. I have no good answer to this, at present, but it bears contemplation.
Boiler Plate: With reference to the second to last paragraph above, my remarks should be interpreted as carrying the following meaning which is consistent with the text. That is, that there is no contention that the judiciary is not independent, but rather that it cannot be concluded a priori/tautologically that it is indeed independent.
Afternote: Towards the end of the above note, I considered a spiel on how this would be an interesting problem in "human systems engineering", which I'm rather interested in. (i.e.: matters relating to incentives, moral hazard, strategic behavior, etc. within institutions.)
The choice of an institutional format may result in consequences that are unspecified in the terms of reference, such as the "shadow of the previous government" effect. I feel that in so far as such effects are known, they should be articulated in an appropriate attachment to ensure consistency in subsequent legal interpretations.