Citation(2016) 28 SAcLJ 552
Published date01 December 2016
Date01 December 2016

The Constitutional Role and Autochthony of the Singapore Auditor-General

The Singapore Auditor-General has been an important constitutional office since 1991 but remains a severely under-examined institution in local scholarship. In 2015, the office received much attention after its findings on an opposition town council precipitated a protracted political debate. This article seeks to plug the gap in constitutional law literature concerning public finance accountability. It posits that as a whole, the office is moderately high in independence and effectively contributes to constitutionalism as a check on financial power. It further postulates that the office adds to Singapore's constitutional autochthony. Finally, the article proposes reforms, referencing other jurisdictions.

I. Introduction

1 Almost, if not every, country has an Auditor-General to check and report on public finances and government operations. Due to the critical nature of their work, they often face hostility. Nigeria's Auditor-General of the Federation, for instance, became the target of a 2015 assassination plot,1 while Canada's Auditor General was being sued by the public in 2011 for withholding a report which reportedly contained misuse of public funds for a G-8 summit.2 Auditors-General may also stoke political controversy. An example is Malaysia's Auditor-General,

who was tasked to investigate the massive 1MDB scandal plaguing the Government.3

2 In Singapore, the Auditor-General (“AuG”) and the Auditor-General's Office (“AGO”) have maintained a relatively low profile for decades but were thrust into the limelight in recent years, particularly 2015. In February 2015, its special audit findings concerning the Aljunied-Hougang-Punggol East Town Council (“AHPETC”) sparked political crossfire in Parliament between the Government and the opposition Workers' Party (“WP”).4 The Finance Minister had directed the AuG to conduct a special audit after the AHPETC failed to submit financial statements on time and their auditors expressed disclaimers of opinion.5 Later in July, coincidentally one-and-a-half months before the general elections (“GE”), the AuG released its routine annual report which highlighted serious lapses in some public agencies, including the People's Association.6 The AGO received further media attention during the GE, when the Prime Minister commended it in his lunchtime rally speech as a key institution keeping the Government “straight” and accountable,7 while political candidates cited AGO's findings when discussing town council issues during rallies.

3 Nonetheless, the Singapore AuG is starkly different from his foreign counterparts and is highly unique in terms of his legal position and roles. Notably, he is independent of all three branches of government and acts as a check on all three. Though under-examined in local constitutional literature, this constitutional office in practice plays a vital role of limiting government power in financial and operational matters, particularly given Singapore's dominant party political system. Only one political party, the People's Action Party (“PAP”), has formed the Government after every GE in Singapore since independence.

4 The mission of the AGO to “enhance public accountability”8 will be ever more crucial for Singapore in future as the 2015 GE appears to further entrench the position of the PAP as the legitimate party to govern Singapore.9 This is despite it being the most competitive elections in Singapore's independence history. Paradoxically, however, the clear voter preference for PAP to govern Singapore comes amidst increasing political participation10 and civil society activism for transparency and accountability over public moneys.11 In this regard, the non-political office of the AuG would presumably play a crucial role in ensuring such transparency and accountability. One PAP minister had even gone to the extent of characterising the AGO as the “real check” in government, juxtaposing it against the opposition which had claimed to be a “robust check and balance”.12

5 This article argues that the AuG plays a largely independent and effective role in Singapore's constitutional government of promoting public finance accountability. It also postulates the AuG as another innovation within Singapore's constitutional autochthony. Part II13 provides a historical and conceptual understanding of constitutionalism and public finance accountability in common law jurisdictions, introducing parliamentary control, state audit and Singapore's accountability process. Part III14 tracks the evolution of Singapore's AuG. Part IV15 evaluates the AuG's independence as a prerequisite of an effective check and discusses impediments. Part V16 examines the effectiveness of the check itself, characterising roles and functions of the AuG. Part VI17 reflects on its contribution to Singapore's constitutional autochthony. Part VII18 considers international practices and proposes ideas to enhance the AuG's independence and effectiveness. Part VIII19 presents concluding reflections.

II. Constitutionalism and public finance accountability: A conceptual and historical understanding
A. Regulating state financial power: Emergence of parliamentary control and budget

6 At the heart of constitutionalism is the objective of regulating state power. This ensures public accountability, among others.20 One such means of constitutionalism, adopted as early as the 17th century, was to distribute state power across parts of the body politic based on the theory of “separation of powers”.21 Consequently, the State distributed power over financial administration (“financial power”) as well. Such power could no longer be in executive secrecy, lest it ran afoul of incompatibility with the constitutional state.22 Instead, the Legislature was given control over aspects of financial power such as taxation and public expenditure. The latter was in line with the “fundamental constitutional principle” that charges upon public revenue should be sanctioned by legislation.23 Different branches of government, thus, had to submit proper accounts and disclose documents on their finances.24 Over time, “legislative supremacy”25 emerged over the Executive in terms of financial power in countries like the UK and the US. It was Alexander Hamilton who famously noted in the Federalist Papers that the Executive held the “sword” while the Legislature held the “purse”.26 This division of powers was meant to make the Executive more accountable to the Legislature – which represented ordinary citizens – for the public funds and resources it received and managed. The Legislature held the power to release funds to meet government expenditure. These activities evolved into the formal budget mechanism over time.

7 There was, however, recognition over time that this arrangement dividing powers to ensure accountability had to be supplemented by an expert checking mechanism. Thus, for instance, in 1866, the British Exchequer and Audit Department Act (“E&ADA”)

created the office of Comptroller and Auditor General (“C&AG”), tasking him to certify and report on public accounts and ensure propriety of public expenditure. This laid the final touches to a “complete financial control system”, with parliamentary and treasury financial powers, supported by the C&AG.27 This is significant because most British colonies subsequently modelled their local ordinances concerning local public finance management on the British E&ADA.28 Similarly, as a British colony, Singapore inherited the budget system and the Singapore (Constitution) Order in Council 195829 formally included finance as a distinct subject in the constitutional order, covering, inter alia, budget estimates, authorisation of expenditure and the Consolidated Fund.30 This was later supplemented by the Financial Procedure Ordinance of 195931 when Singapore attained full self-government. It is interesting to note, however, that state audit appeared to have predated the implementation of the budget mechanism in Singapore. The Audit Office of the Straits Settlements (“SS”) was established as early as 1867 and submitted annual reports to the Colonial Secretary in London.32 In 1932, the audit offices of the SS and Federated Malay States were consolidated into one audit department. The Singapore Audit Office (later renamed the Singapore Audit Department) was then created.33

8 Parliament's power over the purse or “parliamentary control” of public finances does not, however, mean it has power to make all public spending decisions. There are in fact three levels of decisions concerning government expenditure: (a) planning and controlling total expenditure; (b) determining priorities between different heads of expenditure; and (c) optimising public resources available for each head and programme. The primary locus of Parliament's financial power rests on item (b), with which parliamentary financial procedures are formallyconcerned.34 Nonetheless, Parliament oversees the other two levels of decisions to some extent when the Executive reports to Parliament on these matters. Ultimately, all three levels of decision-making will be

accounted for in the budget cycle, from its beginning to end. This will be explained further in the next section.
B. Budget cycle and state audit as added check

9 Typically, at the start of the budget cycle, the Executive would plan policies for the upcoming financial year, prepare revenue and expenditure estimates, and present them to the Legislature.35 In Singapore, the budget statement is delivered by the Finance Minister to Parliament before the new financial year. The Minister would introduce the Supply Bill to seek Parliament's approval of funds36 and Members of Parliament (“MPs”) would debate on the budget statement.37 Parliament subsequently votes to approve the budget. If the Elected President (“EP”) gives his assent, the Supply Bill passed is enacted in law as...

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