Separation of Powers

The foundation of a democracy is to build a society based on “justice and equality”.¹ To respect equality between persons, governmental power must be distributed ensure no king nor class of citizens can impose their will onto others.

To ensure this balance, democracies split power amongst three branches.² First, the Legislature (or Parliament) debates, passes, and amends laws. Second, the Executive, under the leadership of the President, enforces laws. Lastly, the Judiciary, through the various courts, interprets laws and determines if they have been broken.³

Dubbed the “separation of powers”, such power splitting is a longstanding pillar of democracy, beginning in England in the 1700s and from there, becoming the standard across the world.⁴ However, despite the label of “separation”, the legal process instead ties all three branches together to ensure that laws are followed through in Singapore, and that their intended normative effect is realised.

As an example, let’s examine how these distinct branches of government work together to create and enforce the recent Protection Against Online Falsehoods and Manipulations Act, or POFMA.

The Legislature

POFMA begins at the Legislature, where the process of lawmaking starts.⁵ Typically, a Minister introduces a draft law, known as a Bill, to the rest of Parliament. These bills are read thrice in Parliament. On the first and second readings, the Bill is debated by the Members of Parliament (MPs), who ask questions or propose amendments. Once this is completed, a vote to pass the law is conducted on the Third Reading. If more than 50% of the MPs present vote for the Bill, it is passed. Finally, the President must sign off on the Bill for it to become law.

POFMA was introduced in Parliament on 1 April 2019, by the Minister of Law.⁶ It was read three times, on 1 April 2019, 7 May 2019, and 8 May 2019. The long gap between the first and second readings gives the Ministry of Law time to make amendments to the Bill. At the third reading, 72 MPs voted in favour of the Bill, allowing it to pass.⁷ President Halimah Yacob then assented to the Bill, allowing it to enter into effect.⁸

Select Committees

For Bills that warrant special attention such as POFMA, Parliament can convene a Select Committee to review the Bill.⁹ Such Bills likely raise sensitive concerns such as potential overreaches of privacy, which would require expert testimony or additional documentation to ensure that Parliament is sufficiently well-versed on the topic to vote on it. After conducting their research, the Select Committee will present a report to Parliament about their findings.

How are MPs chosen?

But how are MPs chosen?¹⁰ In Singapore, the candidates with the highest percentage of votes are selected. Candidates can run for election individually or in a group, forming a Group Representation Constituency (“GRC”). After voting, the candidates in the group with the highest percentage of votes become MPs. There are two other forms of MPs – non-constituency Members of Parliament (“NCMPs”) and Nominated Members of Parliament (“NMPs”).¹¹ NCMPs are the “best losers” in an election – they have the highest percentage of votes from the unelected candidates. NMPs are not associated with any political party but are appointed by the President upon the recommendations of a Select Committee.

The Executive

Once a law is passed, the Executive administers the law and ensures that the law is followed. The Executive comprises the President, Cabinet and the Attorney General.¹² Together, they are responsible for enacting government policies which enforce laws and ensure smooth administration of the nation’s daily affairs.  

The Cabinet

The Cabinet is formed by Ministers who head different ministries and statutory boards.¹³ They are led by the Prime Minister, who is the MP who commands the confidence of the majority of the MPs. These Ministers are appointed from the MPs by the President, who is advised by the Prime Minister. While the Cabinet controls the Government, it is still accountable to Parliament. For instance, the Cabinet has previously invoked POFMA in response to 5 cases of misinformation spread regarding the 2020 General Elections.¹⁴ This, however, does not mean that POFMA is used lightly. The Cabinet has stated that there are rigorous processes that take place before POFMA is invoked.¹⁵ A Minister must approve the invocation of POFMA.¹⁶

The Cabinet also has the power to create subsidiary legislation, which are a set of rules and regulations to ensure the smooth functioning of the main law. In POFMA’s case, there are two pieces of subsidiary legislation – the Protection from Online Falsehoods and Manipulation Regulations 2019, and the Protection from Online Falsehoods and Manipulations Order 2019.^{17, 18} Unlike primary legislation, these do not have to be debated in Parliament and approved by the President.¹⁹

The Judiciary

Unfortunately, Parliament cannot legislate for every kind of scenario that might occur, or some citizens intentionally or otherwise, run afoul of the law. In such situations, the Judiciary, which comprises Singapore’s courts, help to interpret what the written law means. Judges hear disputes arising between parties and decide on an outcome (i.e. a ‘judgement’, or a ‘decision’) for the parties.

Judges apply the law by drawing from different sources of law such as statutes or previous court decisions. They then decide whether a violation has occurred. When an allegation under POFMA has been made, it is up to the courts to determine whether a violation has occurred by objectively determining the falsity of the statement.

The President

The President plays a unique role in both the Legislature and the Executive.

In the Legislature, the President must assent to passed Bills for them to officially become law. The President acts with the advice of the Cabinet, or with a Minister with the authority of the Cabinet.²⁰ They are also advised by other Councils, such as the Council of Presidential Advisers, the Presidential Council for Religious Harmony, and the Presidential Council for Minority Rights.^21-23 These Councils review Bills before it is passed to the President for their assent.

In the Executive, the President has complete discretion when it comes to appointing the Prime Minister. In practice, however, they will likely take guidance or advice from other stakeholders. The President also possesses other ancillary powers, such as the Presidential Pardon, where suitable offenders may be absolved of offences if the President sees fit.²⁴ However, this discretion is not complete, as they must still act on the advice of the Cabinet.

The Attorney-General

The Attorney-General (“AG”) assists both the Legislature and Executive.²⁵

In the Legislature, the Legislative Division of the Attorney-General Chambers is responsible for translating policies into Bills, which then become legislation after being approved by Parliament.²⁶

Overview

If you asked someone about the branches of government and what they do, you’ll likely be hit with “aiyah, same same but different ah” – if you asked us, we’d say the same too; all three branches serve the same goal of protecting Singapore’s democratic values, just that they do so in their unique ways through their own institutions. In our following publications, we will examine each of the branches in more detail.

Written by: Janae Kwan
Year 3 LL.B. Student, Singapore Management University, Yong Pung How School of Law