This chapter critically examines the history of Singapore’s policing system, and argues that while Singapore may be seen as an authoritarian state, its system of policing – save for the existence of preventive detention laws – is largely democratic. During the colonial period, the police force was always short of money and policemen poorly paid, inept, and corrupt. Notwithstanding various reforms, the colonial police were unable to deal with the secret societies – the biggest threat to public order and safety – and relied on a mix of welfare, cooperation, and selective coercion. It was only after Singapore’s independence that local politicians introduced draconian preventive detention laws that succeeded in breaking the backs of the secret societies. Even so, the state did not rely only on these laws to police the population but also invested heavily in strengthening and boosting the police force, reforming it towards a more community-oriented form of policing.

In 1988, Malaysia’s Constitution was amended to separate the Syariah and civil jurisdictions of the courts. Henceforth, matters involving Syariah (Islamic religious law) would only be litigated in the Syariah courts and not the civil courts. This move proved problematic especially since the Federal Constitution regulates all fundamental rights and liberties – including the right to religious freedom – while religion is regulated by the constituent states. State legislatures are thus empowered to create and punish offences against precepts of Islam. This chapter analyses how common law principles of administrative law have been applied and developed in Malaysia by studying their interaction with the administration of Syariah law. More specifically, it asks: How do the civil courts exercise its powers of judicial review in cases involving Syariah and the exercise of powers by both secular and religious authorities in such cases? It traces the patterns of judicial application and assessment of key administrative law principles such as natural justice, reasonableness, and proportionality and argues that while English precedents continue to be cited, these same precedents are often jettisoned and modified when it conflicts with the political power and primacy of Islamic law.

Scholars studying Singapore have given it many labels ranging from a dictatorship and one-party state to an illiberal democracy. In 2015, Mark Tushnet, in a much-discussed article published in the Cornell Law Review, used Singapore as the quintessential prototype of what he calls “authoritarian constitutionalism.” This chapter critically examines and unpacks Tushnet’s model of “authoritarian constitutionalism” and argues that this categorization is neither accurate nor useful. The author argues that Tushnet’s construction of this model is based on flawed premises and variables and that from the perspective of comparative constitutional law, this kind of model-making is unhelpful for scholars seeking to understand the true nature of how constitutions work in different societies.

Introduction

The former British colony of Singapore is an island republic occupying an area of 660 square kilometres at the southern tip of the Malayan peninsula. A tropical island just north of the Equator, it has a permanent population of 4.8 million with three main ethnic groups: Chinese (77%), Malay (14%), Indian (7.6%) and others (1.4%). It has a sophisticated and well-developed state capitalist mixed economy in that the state controls and owns firms comprising at least 60 per cent of the country's GDP through various government entities, companies and sovereign wealth funds. Singapore being an island with no natural resources, its economy has traditionally been dependent on entrepot trade and manufacturing of high value-added products, such as computer disk drives and wafers. It is also the busiest port in the world.

Historical context

Pre-colonial Singapore

Singapore's history prior to the 14th century is sketchy. By the 1300s it was a trading centre of considerable importance. At various times, Singapore came under the influence of the Sumatra-based Sri Vijaya Empire (200–c 1400); the Java-based Majapahit Empire (1478–1520s) and the Malacca Sultanate (at Malacca and later at Johore and Riau). After the Portuguese burned down a Malay outpost on the island in 1617, Singapore was most probably abandoned and became a sparsely populated fishing village and pirate outpost. We know little of what law was administered in Singapore during this early period.

Introduction

Constitutions are supposed to step in when men fail. But what happens when constitutions themselves fail, or, more ironically, if constitutional orders have in-built mechanisms for the total suspension of the rule of law? What happens when courts bow in the face of naked executive might? Does the law have a place in such situations, or is it all down to politics? Nowhere is this seen more graphically than in the case of emergency powers.

In most liberal-democratic societies, emergency legislation and the power of preventive detention are considered aberrations; a necessary but illegal intromission on the rule of law. British Prime Minister Winston Churchill called such a power ‘in the highest degree odious’. Scholars have thus often tried to deal with the emergency conundrum by reference to politics and executive prerogatives, and courts have dealt with it using the doctrine of necessity. But in Southeast Asia, states of emergency have been so common in the decolonisation period and its immediate aftermath that clauses empowering the executive to proclaim states of emergency as well as to issue emergency laws or regulations have been routinely incorporated into the constitutions of these societies.

In this historical account, I consider how the legal systems of the region have dealt with these questions since the time of their creation. While situations within Southeast Asia are varied and complex, ranging from a total collapse of law and legality as in the case of Myanmar, with little pretence of legality, to an American-style defence of the rule of law as in the case of the Philippines.