Does the “Basic Structure Doctrine” Apply in Singapore’s Constitution? An Inquiry into Some Fundamental Constitutional Premises
[This appears as ch.2 of Jaclyn Neo (ed), Constitutional Interpretation in Singapore: Theory and Practice (Routledge, 2016). The chapter argues that the basic structure doctrine has no application in Singapore, given the nature of its constitutional history. If you follow my argument it will be clear that I do not, however, imply that it does not apply elsewhere.]
I. Introduction
Any form of
constitutional interpretation engages, or should engage, with fundamental
constitutional principles. Purely pragmatic or knee-jerk solutions could prove
very awkward if the deep structural implications of a particular interpretation
are not carefully considered as a matter of legal reasoning within a particular
frame of reasoning. In a rule-of-law society, consistency in the way the law
deals with difficult issues such as constitutional interpretation is of the utmost
importance, and therefore lawyers are always concerned with “basic structure””
in one way or another: the chapters in this book are a paean to this idea. In
this sense, basic structure is always with us when we reason legally. When judging
the constitutionality of legislation, for example, we do not do so in the
abstract, as it were, but by reference to the totality of the constitution’s
provisions and the intentions and assumptions that gave rise to them.[1] Basic structure or basic features[2]
can hardly be avoided when performing this task. A good example of this is
those decisions that preserve the independence of the judiciary; it is
unexceptional to interpret constitutional provisions in line with the
separation of powers as an aspect of “basic structure”, as was done by Chan Sek
Keong CJ in Mohammad Faizal bin Sabtu.[3] This case raised the question of whether
statutory provision for a mandatory penalty in a criminal case constituted an
unconstitutional interference with the judicial power. In deciding that it did
not do so, Chan CJ accepted that the separation of powers between the
legislature, the executive and the judiciary was part of the basic structure of
Singapore’s Constitution,[4]
being based on Westminster-model principles.[5]
The words “basic
structure doctrine” in the title of this chapter, however – and let us be quite
clear - goes much further than the above paragraph. It refers to the
constitutional doctrine set out by India’s Supreme Court in the epoch-making
case of Kesavananda Bharati in 1973.[6]
Under this doctrine, a law seeking to
amend the Constitution is not constitutionally valid if it is judged to be inconsistent
with what the court called the “basic structure” of the Constitution. Thus, constitutional
amendments are subject to an implied limitation under the Constitution of India:
the limitation that no amendment has power to destroy the Constitution’s basic
structure, even if the procedure
prescribed by the Constitution for effecting an amendment is complied with. This
limitation is implied because the Constitution of India (unlike some others[7]) at no point places express limits on the substance of the power
the legislature has to amend the Constitution. The limits on this power are, on
the face of the Constitution, limits only in the procedural sense, namely, that
a majority of two thirds of the membership of each house in favour of a bill
seeking to amend the Constitution is required before the amendment can take
effect.[8]
A similar
procedural limit is, as it happens, expressly imposed by the Constitution of
Singapore, which provides that a bill for amending the Constitution must be
supported by at least two thirds of the total number of the Members of
Parliament at second and third readings (except, of course, that the Singapore legislature
is unicameral, not bicameral).[9] However,
Article 6 protects Singapore’s sovereignty with a further requirement of a
referendum, in which two thirds of the votes cast must be in favour of surrendering
sovereignty for the amendment to be valid. A similar requirement also applies (Article
8) to amendments to this very Article 6, as well as to amendments falling under
Articles 5(2A) and 5A, which concern fundamental rights, and the tenure, powers
and privileges of the President, as well of course as Articles 5(2A) and 5A
themselves (although these provisions are not yet operational). The amendment
provisions themselves have been subject to amendment on several occasions. The
two-thirds-majority requirement itself, we might note, was removed in 1965 and then
reinstated in 1979.[10] We
can also note that the supremacy clause[11]
itself was introduced only in 1979 by virtue of the process of “reprinting” the
Constitution.[12] The amendment process itself seems therefore
not have been regarded as part of the Constitution of Singapore’s basic
structure; indeed the special majority requirement was removed and then
reinstated for purely strategic or contingent reasons.[13] Singapore’s
Constitution therefore contains no express limits with regard to the substance
or subject matter of an amendment, so that on the face of the Constitution it allows
an amendment of any of its provisions to be effective if it complies with the
relevant procedural requirements, even if it has the effect of destroying the
Constitution’s basic structure. The question addressed here is whether in
Singapore there is an implied substantive limitation on the power of
constitutional amendment, as there is in India.
In this chapter,
I am therefore concerned only with implied, substantive limits, not with procedural
ones. In the latter case, we can readily grant that the courts would have power
to strike down a purported constitutional amendment that failed to comply with
the procedure set out in the Constitution. This might occur if, for example,
Parliament purported to pass a bill for amending the Constitution by
acclamation rather than a proper parliamentary vote; or if a referendum
requirement were abused by posing the question in a prejudicial manner or
miscounting the votes.
The notion of
judicial review of the substance of a
constitutional amendment as opposed to reviewing compliance with procedure is
startling, if such a great power is being implied
into the provisions of a Constitution. In such a case, we are assuming that the
required procedure has been impeccably complied with. We might indeed be
inclined to say that a special majority (even more so, a referendum) should be
determinative if the express words of the Constitution require nothing else.
Imagine what chaos there might be in a football match if the rules, as
interpreted by the referee, required, for the scoring of a goal, that the ball
must not just cross the goal line but must cross it after being kicked by the
goalkeeper’s opponent within (not just the stated rules of the governing body
but) the basic structure or spirit of the game. Players, managers, officials and
spectators would be confused as to when a goal had been scored or even how to legitimately
score a goal. They would no doubt suspect the referee of bias or arbitrary
decision. Confusion would reign.
That a notion is
startling should not in itself, however, prejudice our minds against it. There
is no doubt that in the USA of the early 19th century, lawyers and
others were shocked when the Supreme Court proclaimed without any textual
support that the courts could review the constitutionality of legislation.[14] Two
hundred years later, it is still not entirely accepted by everyone as a matter
of principle, but it is hardly contestable as a constitutional fact: the recent
gay marriage case illustrates both the fact that the Supreme Court decides
fundamental questions relating to rights and that its doing so (in this
instance by the slenderest majority of one) is almost always controversial.[15] Just as the US Constitution does not indicate
any express power of judicial review of legislation and the Supreme Court in Marbury v Madison[16] felt
compelled to find this to be a power implied in the Constitution’s provisions
(one might add that it did so as a matter of the Constitution’s basic
structure), so the Indian Supreme Court felt compelled in Kesavananda to go a stage further and decide it had the power to
strike down a constitutional amendment on substantive grounds despite the lack
of any textual support for the existence of such a power.[17]
Naturally, there
are those who will argue that the constitution-makers (in, for example, India) apparently
made a conscious choice not to place
any express limits on the power of constitutional amendment. They could clearly
have done so, and there are indeed, as we have seen, constitutions in which
some provisions have been expressly placed
completely beyond the amending power.[18] The
counter argument is that the constitution-makers could not have considered, or
must have assumed it impossible, that a constitutional amendment that destroys
the basic structure of the edifice they erected could be regarded as valid;
why, otherwise, would they have drafted a constitution that contained the seed
of its own destruction?
I do not wish
here to go into the merits of these arguments, which are as interesting as they
are extensive; my argument here is simply that the correct position is to be
ascertained only by looking at the context (historical and textual) of the
constitution or constitutional provisions in question.
The decision in Kesavananda, controversial as it was,
set off a process of consideration of the applicability of the basic structure
doctrine (in the sense in which I am using the term here) in the constitutions
of the region – in Pakistan,[19] Sri
Lanka[20] and
Malaysia[21]
– and also in Singapore.[22] This chapter accordingly discusses
the arguments for and against interpreting the Constitution in line with the basic
structure doctrine, and argues that this doctrine (strictly, that is, in the
narrow sense indicated above) has no application to Singapore’s Constitution.
This, it is argued here, is due to the manner in which Singapore’s Constitution
was laid down in the months and years following Singapore’s separation from
Malaysia in 1965, that critical moment when a new republic was born in the
crucible of international political events.[23]
What we see in
Singapore’s constitutional history, it is argued here, is not an act of a
constituent body such as occurred in India, but rather a constitutional evolution
via a gradual legislative process of combining different sources,[24]
and subsequent piecemeal attempts to redesign the constitutional apparatus, a
process which appears to be still continuing as Singapore celebrates 50 years
of independence under its patchwork Constitution. In advancing this thesis, I argue
that the basic structure doctrine is contextually
based. What I mean by this is that a constitutional principle of this kind
cannot be regarded as generally applicable
in any given constitutional order. Its applicability will depend on a number of
factors that include the actual wording of a given constitution, the
circumstances of its drafting, the presumed intention of the
constitution-makers, and the perceived role of the judiciary. Accordingly, it
makes no sense to ask whether someone “believes in” the basic structure
doctrine, as it would if you were to ask if they “believe in” the rule of law
or judicial independence. The saliency and even the content (i.e. what features
are basic?) of the basic structure doctrine will vary according to the
constitutional context in question. It may well be that the doctrine applies in
Malaysia, for example, due to the different context of its constitution-making.
Since this idea is
fundamental to my argument, let me briefly explain it further.
When we confront
the basic structure doctrine, should we adopt a contextual or a normative
approach? Do we say that legal principle is so inherent in the nature of constitutional
ordering (or conceivably, in the eyes of some, Westminster-model type
constitutional ordering) that what is true in one constitutional order is
potentially true in another, especially if the two are genetically connected in
some sense? Or is every response on this issue in a given society dependent on
its own relevant factors, some of which are listed above?
There may well
be many relevant factors and indeed many ways of posing this question, but my
point here is that the salience of the basic structure doctrine is contextual, and these relevant contextual
factors will therefore vary considerably between constitutional orders. Indeed
the basic structure doctrine in India depends very much on contingent factors
of this kind, being based on what Krishnaswamy calls “a coherent reading of the
constitutional text”, as well as historical facts and statements in the
Constituent Assembly.[25]
It is not, in my view, necessary or appropriate to argue for a general position
on this issue because no such general position is, logically, possible. Constitutions
do not emerge from some well-spring of theory so that their principles are
abstracted from any particular time and place. On the contrary, they are contingent
expressions of what is desired in a particular society at a given point in
time, and which are to be judged according to their fitness for the desired
purposes. These purposes may of course change over time: hence the need for
constitutional change (even Singapore’s relatively stable Constitution has
actually been amended 21 times since the 1992 revised edition). I doubt if any
constitution-maker could properly assume a kind of Olympian omniscience and
omnipotence in laying down a constitution for a particular society for ever, let
alone a general constitutional theory that is universally or eternally applicable.[26] Even
“constitutionalism” as an inherent quality of constitutions is not universal or
certain in its content: it has a core of meaning, no doubt, but needs to be calibrated
according to the nature and development of constitutional law and
constitutional ideas current in the jurisdiction in question. In Singapore’s
case, we can note, fundamental
changes have been made within the last generation to both the process of
constitutional amendment itself and to the presidency. These are basic issues
in constitutional ordering and have defined (not perhaps finally) the nature of
constitutional law in Singapore.
In this chapter,
arguing as I do that the basic structure doctrine has no application in
Singapore, I maintain that any conditions for application of the doctrine were
simply not present at the critical moment of separation in 1965 and beyond.[27] In the last part of the chapter I
take the argument a stage further by asking a hypothetical question: if I am
right, what would the consequences be in terms of any future attempt to
entrench the Constitution, or a Constitution, in Singapore? Just as the basic
structure doctrine does not apply, as I argue, because of the events at
Singapore’s founding, could it become
part of the constitutional law of Singapore under different future
circumstances that might attract its application? If the doctrine is contingent
rather than necessary, could the relevant contingencies change?
II. Basic
Structure and Basic Sources in Singapore’s Constitution
When Singapore
unexpectedly became an independent republic after ceasing to be part of the
MalaysianFederation on 9 August 1965, that was potentially what Ackerman calls
a “constitutional moment”.[28]
Of course, it was determinative in the sense that Singapore sovereignty was
thereby established. But, constitutionally it proved not in fact to be simply a
“moment”, but rather the beginning of a process of adjustment which may be
regarded as ongoing even after 50 years.[29] While
one would have expected – and indeed it was indicated at the time – that this
event would lead to a consideration of Singapore’s constitutional future, what actually
happened was rather different. A Constitutional Commission was indeed
established but the Commission, rather than looking anew at Singapore’s constitutional
issues in this unexpected situation, simply looked at a few issues and some, but
not all, of its recommendations were adopted.[30] It
was not a review of the entire Constitution. This was all in sharp distinction
from India (and indeed many other jurisdictions), where the process of independence
led to a Constituent Assembly which drafted India’s constitution. In Singapore
a piecemeal approach was taken that knitted together, largely from existing
sources, a renovated rather than a wholly new Constitution.
First, the
Singapore Parliament passed the Republic of Singapore Independence Act 1965
(RSIA),[31]
which made provision for Singapore’s newly established independence. This was
in essence a constitutional statute.[32]
Secondly, the
RSIA also continued in force the Constitution of Singapore of 1963, which
applied to Singapore as a State of the Malaysian Federation under the Federal
Constitution; this State Constitution had been derived from its colonial
predecessors and agreed under the Malaysia Agreement of 1963.[33]
Thirdly, certain
applicable provisions of the Malaysian Constitution were also continued in
force by the RSIA, notably the fundamental rights provisions now in Part IV of
the Constitution of Singapore and the citizenship provisions now in Part X.[34]
Essentially, this meant that the constitutional status quo continued (mutatis mutandis, of course – a new
Republic was, after all, being formed, but at that point who knew for how long?)
as opposed to a new Constitution being drafted.
Fourthly, in
1979, Parliament empowered the Attorney-General to consolidate these various provisions,
together with subsequent amendments, into one document, which was not itself
passed by Parliament but became the Revised Edition of the Constitution of the
Republic of Singapore 1980. The actual text of the Constitution, including the
numbering of its provisions, was thus, remarkably, settled by an executive rather
than legislative or constituent act, under the general authority of Parliament.
This Revised Edition was succeeded by further Revised Editions in 1992 and
1999.
While Mohamed Faizal bin Sabtu[35]
discusses the idea of a basic structure in the context of interpretation, Teo Soh Lung’s case[36] and Vincent Cheng v Minister of Home Affairs[37]
deal directly with the issue of the validity of constitutional amendments. In
the former case, the High Court rejected the applicability of the basic
structure doctrine in relation to the Constitution (Amendment) Act 1989,[38]
which had the effect of depriving the applicant of the benefit of judicial
review by means of amendment to the Internal Security Act and Article 149 of
the Constitution, under which the Act was passed. These amendments followed a
decision of the Court of Appeal in Chng
Suan Tze v Minister of Home Affairs,[39]
following which the applicant had been released on a writ of habeas corpus, only to be re-arrested
under fresh documentation. Chua J held that the Kesavananda doctrine was “not applicable to our Constitution”
because of “the differences in the making of the Indian and our Constitution”.
He further held that “[i]n any case none of the amendments complained of has
destroyed the basic structure of the Constitution”. In Vincent Cheng, Lai J decided along the same lines, approving Chua
J’s judgment in Teo Soh Lung.
III. Basic
Structure and Governance Innovation
We have seen
that the moment for drafting an entirely new constitution passed in 1965/6 and
another, more pragmatic, inductive approach was taken. Most notably, an
amendment of 1991 introduced an elected presidency having some executive powers.[40]
The merits of this major change are not a subject for this chapter, but it can
be noted, nonetheless, that it might be argued, if the basic structure doctrine
applies in Singapore, that by altering the nature of the presidency in this way
Parliament had indeed altered the basic structure of the Constitution away from
the Westminster model, a model that one sees indelibly engraved in its original,
if evolutionary, form in 1963-5. It has even been argued that the elected
presidency has actually become part
of the basic structure of Singapore’s Constitution.[41]
This latter proposition is puzzling if examined from the
perspective of the basic structure doctrine. If a constitutional amendment is passed
that fundamentally alters the structure of government, how could that amendment
at the same time a) be valid in spite of destroying by alteration the existing basic
structure of the Constitution, and b) become part of that basic structure, and
hence immune from amendment? If it is retorted that the basic structure can
change over time, then surely the correct response is that that is indeed correct,
which in turn establishes the point that the power of constitutional amendment
is there precisely to provide a process for such change, whether that change is
incremental or fundamental. While one can see arguments for entrenching
fundamental rights so as to render them beyond not just legislative but even
constitutional amendment,[42]
still, as a matter of political morality, it is hard to see how such
entrenchment can be appropriate for a particular structure of government. Structures
of government are not necessarily moral or immoral: they are simply designed to
fulfil the need for stable, effective, and accountable government, and this
need may produce different results in different societies at different times. If
we consider all those countries, even within the ambit of the “Westminster
model”, that have changed their government structure from parliamentary to
presidential (actually around half of the countries in the present Commonwealth[43]), is it really the case that these
constitutional changes are all invalid as destroying the basic (Westminster)
structure of their respective constitutions? If so, these countries might
argue, we are saddled with British constitutionalism forever. The constitution-makers, one imagines, could not have
desired or intended such an absurd result. It is of course significant in this
regard that Kesavananda itself was
concerned with fundamental rights and not
specifically with the structure of government.[44]
In Singapore’s
case, the original Constitution embraced parliamentary democracy with its
distinctive Westminster-type conventions, including those deriving from a
distinction between the (non-executive) head of state and the (executive) head
of government, and an independent judiciary.[45]
One could of course argue, in the alternative to the argument addressed above, that
such basic structure was altered, but not in any way destroyed, by the change in this form of government that took place
when the elected presidency was introduced. One could point here to the purely
negative, veto-like powers of the President, which are more like reserve powers
than executive powers in the plenary and ordinary sense of the term. On this
argument, the elected presidency would be merely an incidental modification of
the Constitution which preserves the possibility of the basic structure
doctrine being applied to Singapore’s Constitution. A more convincing argument (and
one that is consistent with the view taken in this chapter) might be that
Singapore’s Parliament is, and should be, entitled to change the structure of
government away from the Westminster model in whatever manner it chooses. The
actual constitutional power to do this (as opposed to the expediency of such a
change) does not appear to have been an issue anywhere else in the Commonwealth,
despite many such structural changes.[46]
In Singapore
there have, in addition, been several changes to the system of elected
parliamentary representation; for example, the introduction of the GRC (group
representation constituency), NMP (nominated Member of Parliament) and NCMP (non-constituency
Member of Parliament). Parliament could, for instance, on the view advanced
here, abolish the elected presidency thereby restoring the status quo ante; or
create a hybrid presidency in which the head of government is head of state and
enjoys the confidence of the parliament in which he or she sits; or change the
entire electoral system to one of proportional representation or abolish
constituencies as the geographical basis of representation. Singapore would not,
in any of such events, be the first country to commence with a
Westminster-model constitution upon independence and then proceed to modify it
several times over.[47] Singapore
is not a federation but the argument might equally apply to changes in federal
and unitary structures. If, shall we say, Malaysia decided to establish
peninsular Malaysia as a unitary state in federation with Sabah and Sarawak; or
if it admitted Brunei or readmitted Singapore to the existing Federation on
favourable terms reducing the powers of existing states - would these changes
really be juridically impossible due
to the applicability of the basic structure doctrine? Such a stance in
opposition to a majority or consensus would invite constitutional revolution
and the avoidance or even the overthrow of judicial power.[48]
The contextual point
I wish to emphasise, however, remains that in Singapore, there was no
constitutional moment in which Singapore’s Constitution was created, and
therefore no process whereby constitution-makers expressly or impliedly laid
down a basic structure for Singapore’s Constitution which could not be
destroyed by constitutional amendment. Rather, Singapore’s Constitution fell
into place by a process of piecemeal legislative actions directed towards
specific issues. If Singapore had any “constitution-makers” as such, they might
have been the parliamentarians of 1965-79, the period in which constitutional
flexibility was espoused; but, even these members owed much to those who
drafted the Constitution of the Federation of Malaya in 1957 and the State Constitution
of Singapore of 1963. Furthermore, 1979 should not be seen as the culmination of a process of
experimentation leading to consolidation but on the contrary as marking the beginning of such a process, which has
yet to find its endpoint.
It is, of course,
arguable that a constitution-drafting process should have been iterated in
1965, and indeed it is surprising that this did not happen, given the novel
circumstances in which this new, unintended republic found its way into the
world. Arguable as this might be, it does not, however, represent historical
fact. The Constitutional Commission, despite its name, was not mandated to
draft a new constitution. The view was held that current arrangements were
quite satisfactory, but merely needed some adjustment to the new circumstances.
This theory of constitutional change seems still to apply. One can of course
readily imagine that a drafting process would have been highly charged
politically, given the controversial circumstances of 1965 and the fact that a
substantial number of sitting MPs belonging to the Barisan Sosialis Party regarded
the whole process of enacting the RSIA as unconstitutional and boycotted Parliament.[49] A
process to draft a new constitution in these circumstances would have proved
very difficult, although not perhaps impossible. In the event, what we can
discern is a gradual, pragmatic attempt to adjust, experiment with, and
entrench the new constitutional arrangements over a lengthy period – 50 years
to be precise, and counting.
If the basic
structure doctrine does, contrary to my argument, apply in Singapore, we are
faced with some intractable questions. We might argue about the fundamental or
merely incidental nature of the changes to the presidency, but we could hardly
argue that the process of constitutional amendment itself is not fundamental,
as it determines who has the power to amend the legal system’s most fundamental
law, and therefore stands in a sense superior in legal hierarchy over those laws.
Nor (to pursue this logic) could we argue that Singapore’s sovereignty is not
fundamental to the constitutional order. It is so basic that a referendum is
required in order to surrender it.
In short, if
there is a basic structure to Singapore’s Constitution, then these aspects, at
the very least, must be part of it.[50]
But, consider again the changes to the amendment process: on the basis of the basic
structure doctrine these changes, introduced via procedurally correct process,
must have been (virtually by definition) invalid. By the same token, if
Singapore’s sovereignty were surrendered in terms envisaged by Article 6, and
such surrender were to be supported by a two-thirds vote at a referendum, we
would nonetheless be forced to conclude that any necessary amendments were
invalid because they destroyed the Constitution’s basic structure. The same
argument would of course apply to the entrenchment of fundamental rights and
the elected presidency, yet to be completed under the changes to Articles 5 and
5A.[51]
Seen in this
light, the inapplicability of the basic structure doctrine in Singapore seems
highly compelling. Singaporeans would be astonished to learn that all these
changes that have actually occurred, or whose occurrence is envisaged by the express
terms of the Constitution itself, were unconstitutional. If they were, the
Constitution would be confined within a straitjacket of its own making that
effectively allowed for virtually no development.
Does this take
the position too far? Is there merit in at least leaving the door open for future
application of the basic structure doctrine in the event of an extreme event –
let us suppose an attempt to amend the Constitution in such a way as to abolish
the separation of judicial power completely[52]
and vest it in the legislature or the executive? I suggest that in this event,
the niceties of constitutional interpretation become irrelevant, because here
we enter the realm of revolutionary politics. If the basic structure doctrine were
to be used in a judicial decision striking down an amendment of this kind, it
seems to me that the legitimacy or otherwise of such a devastating change would
be a political rather than a legal question. What role the judiciary might play
in such a scenario is impossible to predict. I see no convincing argument here for
deliberately leaving open the possibility of applying the basic structure
doctrine.
IV. Grundnorms
and Evolving Norms
In an article
published more than 30 years ago,[53] I
argued for a position similar to that set out in this chapter, based on the
uniqueness of Singapore’s constitutional transition from being a post-colony State
of Malaysia to an independent Republic. The burden of my argument in that
article was that in August 1965, one could discern a shift in Singapore’s grundnorm. Instead of the orchestration
of a constitution-drafting process, Singapore’s Parliament (actually the
Legislative Assembly of the Malaysian State of Singapore in continued de facto operation) stepped in and
legislated Singapore’s Constitution in the manner set out a few pages above. By
doing so, I argued, this Parliament established a form of parliamentary
sovereignty as opposed to constitutional supremacy. In other words, Parliament
had exercised constituent power in enacting Singapore’s Constitution, and
therefore analytically the situation was similar in a sense to that in England
in 1688, where Parliament stepped in to legislate for the royal succession
having deemed King James II to have abdicated. Of course, we can see from the
history of the UK that parliamentary sovereignty is also capable of evolving,
and few these days would maintain it still exists in unadulterated form.[54] Could
it be that this “grundnorm” has shifted over time in Singapore? Or if not,
could it be changed? Can parliamentary sovereignty be consistent with the
Constitution’s apparent adoption of constitutional supremacy (a feature
distinguishing Singapore’s Constitution from that of the UK, as Chan CJ argued
in Mohammad Faizal[55])?
In identifying
the grundnorm in parliamentary sovereignty, my point was that Singapore’s
Parliament assumed the right to lay down Singapore’s Constitution. When it did so,
Parliament was exercising constituent power, as was recognised in Taw Cheng Kong.[56]
It does not necessarily exercise that power all the time. Indeed, by laying
down a procedure for amending the Constitution, it has in effect bound itself
procedurally in such a case. However, on this argument, there is no inherent
reason why the constituent power could not be revived if Parliament chose to
revoke the Constitution and substitute a new one. It seems consistent with the
argument in this chapter that such a constituent act could not be impugned by
arguing that the Constitution’s basic structure has been (a fortiori, of course, if the entire Constitution is revoked)
destroyed, rendering this constituent act unconstitutional. In explaining this,
I do not mean to argue that this would be the best or even an appropriate way
of bringing about constitutional change. That, as I have said, is a political
question to be decided if and when the time comes to decide it. My point is
simply that Parliament has the power to do this given the precedent of 1965 and
the propositions that that precedent has established.
Of course, a
citizen could plausibly argue that the real issue is that the people of
Singapore have never been asked what kind of constitution they would like. Given
that they have, in the last 25 years or so, expressed strong views on such
issues as the elected presidency, GRCs, nominated and non-constituency MPs, the
constitutional position of the People’s Action Party as a “national movement”, and
on freedom of expression, there seems little doubt that a debate about
Singapore’s future constitution would be intense. This is an issue for the
political process to decide. Currently, there is no demand for the drafting of
a new constitution; hence the concern in this book with the issue of
interpreting the constitution. The question, nonetheless, might arise whether
and how one might see the adoption of the basic structure doctrine, were it
thought to be an appropriate innovation. It is my view that, while there is
much to be said for the basic structure doctrine, the entire tenor of the
argument in this chapter is that its applicability needs to be calibrated
against constitutional facts, and these will vary according to the jurisdiction
and its constitutional history. These facts in relation to Singapore appear, we
have seen, to lead to the conclusion that the doctrine has no application in
Singapore, and the courts, as we have also seen, endorse this position. But, as
a matter of speculation as to constitutional fundamentals, and as promised in
the title of this chapter, the argument seems to require an answer to the
question whether Singapore could have the benefit of the doctrine. And if so,
how?
The argument of
this chapter rests on the issue of how the Constitution came into effect. If it
were decided at some future juncture that Singapore needed an entirely new constitution
in which the citizens and/ or their representatives got to debate and adopt such
a new constitution, would such a process allow for the basic structure doctrine
as a plausible basis of interpretation, imposing implied substantive limitations
on the power of constitutional amendment? How indeed would we know if this occurs?
A new
constitution could, of course, be achieved in different ways.
First, it would
be possible for the present constitution to be simply amended in line with
whatever might be agreed, via some political process, as newly desirable
principles or provisions. I leave aside whether a referendum or other approval
process would or should be required. Here we would, on the argument presented
here, encounter little difficulty: such amendments, even if destroying the
basic structure of the constitution, would be valid because the basic structure
doctrine has no application. The intention might well, depending on the extent
of the amendments, be precisely to destroy the constitution’s basic structure.
In this event, I see no good reason why the expressed, concerted political will
of the community should be struck down by the courts.
Of course, it is
also possible in this case that newly introduced provisions might make some
provisions expressly unamendable; in this case, the constitution would have
defined its own basic structure and the doctrine as such would be redundant,
and would indeed be made redundant by such provisions, which would protect certain
provisions by express, as opposed to implied, limitations on the amending
power. Such provisions are not unknown in constitutional law generally, as we
have seen. One could go further and argue that if a constitution provides
different levels of entrenchment
according to their “basic-structure-ness” (as the current Constitution actually
does if one considers Article 6), then the doctrine is impliedly excluded because
the constitution has actually provided a process for amending the basic
structure, that structure being in effect defined by the expressly enacted
scope of the deepest level of entrenchment. [57]
Secondly, however,
it might be thought appropriate to amend the present constitution in such a way
as to contemplate its own eclipse and the bringing into effect of a new
constitution – as it were from the womb of the old. One can imagine various
ways in which this might be done, but the central point would be that there
would be a form of legal continuity. In this case, whether the basic structure
doctrine had application in these new circumstances would, I suggest, be moot,
and would depend on the wording of what we might call the ‘midwife provisions’,
i.e. those facilitating the birth of the new constitution. As against the
current situation and consistently with the manner in which I present it, it
might be arguable that the basic structure doctrine applied to the new
constitution. Much would depend, I suggest, on the nature of the exercise, the
intention of the constitution-makers, and what the courts might feel able make
of those intentions. The point is that the basic structure doctrine could
become relevant in this scenario. Again, it would be possible (and, I would
suggest, highly desirable) for the constitution-makers to address the issue
directly if they chose to do so, either by providing for (or indeed excluding,
if they preferred) judicial review of the new constitution’s basic structure.
It is suggested that basic structure doctrine is too important an issue to
simply leave for judicial interpretation. Given the deeply contested applicability
of this doctrine, if it were thought desirable to give the courts this power it
should be provided expressly as an
act of constitution-drafting: indeed, given what is now known about this issue
it would, I suggest, be nothing short of a dereliction of duty not to make
provision clarifying whether the doctrine applies or not.
Thirdly, one
could imagine a scenario in which Singapore decided to organise a complete
legal break with the current constitution by simply ignoring it or revoking it and
basing a new constitution on some kind of an act of popular sovereignty. This
was effected quite deliberately in Sri Lanka in 1972,[58]
and is actually embraced as a possibility in the German Basic Law’s Preamble, despite
its totally entrenched provisions as indicated in Article 79(3). In this
scenario I suggest that the arguments adduced in Kesavananda would become of relevance; for the contextual reasons
stated above I cannot say if they would be ultimately persuasive. It does not
mean that the basic structure doctrine would have to be adopted. After all, the
courts might find the arguments against the doctrine attractive in spite of the
new legal situation; or they might not. Courts in the region, apart from the
Indian courts, that have considered the doctrine, as we saw earlier, have
generally not looked on it with favour. As with the second scenario above, it
would be preferable in this case to make express provision for judicial review
of the basic structure. Given that the constitution-makers and those debating
the issues, as above, would be presumptively aware of Kesavananda and its aftermath, it would be hardly forgivable if
they offered no solution, or no hint as to the answer, leaving it to the
judiciary to decide with (on this hypothesis) no evidence on which to draw.
Here, let me
explain further a point, mentioned above, that could be relevant to the
evolution of Singapore’s Constitution over time. To the extent that a
constitution provides differing levels of entrenchment, it could in effect
elaborate its own basic structure. Let us suppose, for example, that the most
important provisions in the constitution are entrenched more deeply than other
more detailed provisions (contrast, let us say, the role and position of the
President being amendable by an ordinary law, with detailed provisions
concerning his/ her appointment/ election/ qualification which could only be
altered after a referendum). Let us suppose, to follow the trend in Singapore,
that the “basic” provisions are protected by a referendum requirement. In this
event, the Constitution will have defined its own basic structure; but,
crucially, in the process it will also have defined the manner of amendment applicable to this basic structure. In
India, there is no such protection for basic provisions, which could help to explain
the role of the Supreme Court using the basic structure doctrine to strike down
amendments, these being within the power of the legislature alone to effect. If
the Constitution thereby defines its own basic structure and the manner of
amendment, it is very hard to see any role for the judiciary in contradicting
the clear decision of both the legislature and one or more other elements of
the state such as the electorate. If Singapore’s judiciary is squeamish about overturning
the will of Parliament in ordinary legislation, as is set out in several
chapters of this book, it is hard to imagine that they could adopt an
aggressive stance towards to constitutional amendments, especially if
Parliament and the consensus of citizens have expressed their preference.
V. Conclusion
Let me finally attempt
to summarise with clarity the argument in this chapter.
Under Singapore’s
current Constitution, it is not convincingly arguable that the basic structure
doctrine applies in Singapore. The conclusions of the courts on this point are
correct.
For the future,
I argue, in the event of constitutional change of a fundamental nature, it may
become arguable that the doctrine applies. However, a better solution would be
to decide this issue as a matter of constitution-making rather than leaving it
to the courts to decide. The constitution-makers should decide (in this event)
whether any, and if so which, provisions of Singapore’s Constitution should be
beyond the power of constitutional amendment. There is, of course, much more to
be said on the subject of what a good process for amending the Constitution
would be. There are, in my view, dangers in giving such a power of hyper-judicial-review,
as we might put it, to the courts, which gives them power to strike down not
just legislation passed by a parliamentary majority, but also the considered
view of the community operating the stated process for constitutional amendment.
Of course, arguments will continue as to the desirability of the basic
structure doctrine (I have separated out here the issue of applicability). It is
an unruly doctrine - when does it apply? What is the basic structure? When has
it been “destroyed”?. While arguments will continue as to the merits of the
basic strvutre doctrine, this chapter argues that, as things are, the doctrine
has no application in Singapore.
[1] For
an example of this, see Kevin Tan, ‘Into the Matrix: Interpreting the
Westminster Model Constitution’, at Chapter 3 of this book; and Mohammad Faizal bin Sabtu v Public Prosecutor
[2012] 4 SLR 947 (SGHC) [11]-[12] (Chan CJ). For further discussion, see Calvin
Liang and Sarah Shi, ‘The Constitution of Our Constitution, A Vindication of
the Basic Structure Doctrine’ (2014) Singapore
Law Gazette (August 2014); Benjamin Joshua Ong, ‘The Basic Structure
Doctrine in Singapore: A Reply’, (2014) Singapore Law Gazette (November 2014).
[2] In chapter 3 of this book Kevin
Tan uses ‘basic structure’ in the general sense indicated here, and ‘basic
features’ to indicate limitations on the power of constitutional amendment. In
this chapter I use the term ‘basic structure’ for both of these, but as I
explain here the chapter deals with the second meaning. I accept Kevin Tan’s
distinction but prefer the terminology I have used here.
[3] Mohammad Faizal bin Sabtu (n 1); see also Liyanage v The Queen [1967] 1 AC 259 (JCPC); Hinds v The Queen [1977] AC 195 (JCPC); Australian Capital Television Pty Ltd v Commonwealth of Australia
(1992) 177 CLR 106, 135. Liang and Shi (n 1) use ‘basic structure doctrine’
to embrace both meanings indicated here. In this chapter, I am concerned only
with basic structure doctrine as affecting the scope of valid constitutional amendments, not the scope of
constitutional provisions per se. The authors state, consistently with what is
argued here, that ‘Singapore courts tend to use the basic structure doctrine as
an interpretive tool, as opposed to the role it has traditionally occupied in
other jurisdictions as a trump to strike down errant constitutional
amendments’: ibid [27]; Kevin YL Tan and Thio Li-ann, Constitutional Law in Malaysia and Singapore (3rd ed, LexisNexis
2010) 174-9; Thio Li-ann, A Treatise on
Singapore Constitutional Law (Academy Publishing 2012) 4.055-4.061; and the
discussion of the Singapore cases below.
[5] See
further Kevin YL Tan, ‘Into the Matrix:
Interpreting the Westminster Model Constitution’, at Chapter 3 of this book.
[6] Kesavandanda Bharati v State of Kerala
AIR 1973 SC 1461. For a very thorough study of the doctrine in India, see S
Krishnaswamy, Democracy and
Constitutionalism in India: A Study of the Basic Structure Doctrine (Oxford
University Press 2011); SP Sathe, ‘Limitation on Constitutional Amendment:
“Basic Structure” Principle Re-examined’, in Rajeev Dhavan and Alice Jacob
(eds), Indian Constitution: Trends and
Issues (Tripathi 1978); Minerva Mills
Ltd v Union of India (1980) 2 SCC 591.
[7] Some
constitutions contain ‘eternity’ clauses, which expressly preclude
constitutional amendment of some clauses. For a well-known example, see the Basic
Law for the Federal Republic of Gemarny, Article 79(3).
[8] Art.
368, the Constitution of India. There are other modes of amendment that are not
relevant to the argument here.
[9] Article
5 (1) of the Constitution. There is also a referendum requirement in the event
of a proposal to surrender the sovereignty of Singapore, under Article 6. This
would apply, for example, to a bill to amend the Constitution to enable
Singapore to rejoin the Malaysian federation.
[10] Acts
8/1965 and 10/1979.
[11] Article
4 of the Constitution.
[12] A
Harding, ‘Parliament and the Grundnorm in Singapore’, 25 Malaya Law Review 351,
357; for discussion of issues surrounding this Reprint, see Kevin YL Tan, ‘The
Evolution of Singapore’s Modern Constitution: Developments from 1946 to the
Present Day’ (1989) 1 Singapore Academy of Law Journal 1, 17-23; Public Prosecutor v Taw Cheng Kong
[1998] 2 SLR 410, 417-22 (Court of Appeal).
[13] Essentially,
the objective was to create a temporary period of constitutional flexibility as
a result of Singapore’s sudden, unplanned, independence. According to Prime
Minister Mr Lee Hsien Loong, the presidency, too, is in the process of being
refined as well as the ‘ironing out of issues that can arise in the light of
experience’: Singapore Parliamentary Debates, Official Report (21 October 2008)
vol 85, col 532.
[14] M
Tushnet, The Constitution of the United
States of America: A Contextual Analysis (2nd ed, Hart Publishing 2015)
132-4.
[15] See
e.g. ‘Justice Scalia’s Gay Marriage Ruling Slapdown’ New York Post (New York, 26 June 2015) <http://nypost.com/2015/06/26/justice-scalias-gay-marriage-ruling-slapdown> accessed 17 August 2015.
[16] 5
US 137 (1803) (USCS).
[19] Zafar Ali Shah v Pervez Musharraf PLD
2000 SC 869 (Supreme Court of Pakistan); and a recent case on the 18th
and 21st Amendments, reported in Nasir Iqbal, ‘Military Courts Get Supreme
Court Nod’ (Dawn, 5 August 2015) <http://www.dawn.com/news/1198533>
accessed 17 August 2015.
The Pakistan Supreme Court rejected the applicability of the basic structure
doctrine to constitutional amendments.
[20] See
Re the Thirteenth Amendment to the
Constitution and the Provincial Councils Bill [1990] LRC (Const) 1 (Supreme
Court of Sri Lanka).
[21] See
Phang Chin Hock v Public Prosecutor
[1980] 1 MLJ 70 (Federal Court); Mark
Koding v Public Prosecutor [1982] 2 MLJ 120 (Federal Court); AJ Harding,
‘The Death of a Doctrine? Phang Chin Hock
v Public Prosecutor’, [1979] 21 Mal LR 365. In Sivarasa Rasiah v Badan Peguam Malaysia [2010] 3 CLJ 507 (Federal
Court) [8], Gopal Sri Ram FCJ stated (obiter) and without reference to Phang Chin Hock, that ‘any statute
(including one amending the Constitution) that offends the basic structure may
be struck down as unconstitutional’. The doctrine has also been the subject of
two recent decisions in Belize, for which see Derek O’Brien, ‘The Basic
Structure Doctrine and the Courts of the Commonwealth Caribbean’ (UK Constitutional Law Association, 28
May 2013) <http://ukconstitutionallaw.org/2013/05/28/derek-obrien-the-basic-structure-doctrine-and-the-courts-of-the-commonwealth-caribbean>
accessed 17 August 2015.
[22] Teo Soh Lung v Minister for Home Affairs
[1989] 2 MLJ 449 (SGHC). See below for discussion.
[25] Krishnaswamy
(n 5) 2, 25-42.
[26] The
Constitution of Japan contains some provisions, e.g. the controversial pacifist
provision in Article 9, that envisage eternally applicable principle – the
renunciation of war ‘forever’ and that armed forces will ‘never’ be maintained.
See also, for the Singapore context, Jaclyn Neo, ‘Should Constitutional
Principles be Eternal?’, The Straits
Times (Singapore, 6 October 2014) http://www.straitstimes.com/opinion/should-constitutional-principles-be-eternal> accessed 17 August 2015.
[27] A
Harding (n 11); LR Penna, ‘Diceyan Perspective
of Supremacy of the Constitution of Singapore’ (1990) 32 Mal LR 207, 231; cf Teo Soh Lung v Minister for Home Affairs [1989] 1 SLR(R) 461 (SGHC) [47] per Chua
J.
[28] B
Ackerman, We The People: Foundations
(Belknap Publishing 1993).
[29] Arguably,
all constitutions are always in a process of adaptation. In Singapore’s case,
as we will see, independence was not, as it turned out, a reason to inaugurate
a constitutional moment, even though some might have said it should have been.
[30] Report
of the Constitutional Commission 1966 (Government
Publications Bureau, 1966);
for discussion, see Kevin YL Tan, ‘A Short Legal and Constitutional History of
Singapore’, in Kevin YL Tan (ed), Essays
in Singapore Legal History (Singapore Academy of Law and Marshall-Cavendish
2005).
[31] Act
9/1965.
[33] Agreement
relating to Malaysia between United Kingdom of Great Britain and Northern
Ireland, Federation of Malaya, North Borneo, Sarawak and Singapore (adopted 9
July 1963, entered into force 16 September 1963) 750 UNTS 4
[34] Interestingly
enough for our purposes, these Malaysian provisions were never subjected to the
‘two-thirds’ requirement for constitutional amendment until they purported to
be so subjected by the Attorney-General’s Reprint of 1979. The point can be
made that the Attorney-General was not entrusted by Parliament with the power
to make such a sweeping constitutional change: Kevin Tan (n 11).
[37] [1990]
1 MLJ 449 (SGHC).
[38] Act
1/1989.
[39] [1989]
1 SLR (R) 461 (SGHC), [35]. The decision was appealed but the Court of Appeal
([1990] 2 MLJ 129) found it unnecessary to consider the basic structure doctrine.
[40] For
this issue, see Tan and Thio (n 2) 420ff. For discussion in
relation to the basic structure doctrine, see Ravneet Kaur, ‘The Basic Features
Doctrine and the Elected President Act’ (1994) 15 Sing LR 244.
[42] Krishnaswamy
goes into this question in the particular context of India’s Constitution: (n
5) ch 1.
[43] Andrew Harding, ‘The “Westminster Model” Constitution
Overseas: Transplantation, Adaptation and Development in Commonwealth States’
(2004) 4(2) Oxford University
Commonwealth Law Journal 143.
[45] See
Mohamad Faizal bin Sabtu (n 1) (Chan
CJ).
[47] ibid:
A study of this issue across the countries of the modern Commonwealth shows
that about half of its member states have done precisely that.
[48] We
can bear in mind here that when Malaysia was created from the existing
Federation of Malaya, Singapore, Sabah and Sarawak in 1963, there was indeed a
‘basic structure’ challenge to the fundamental change involved, on the eve of
the Federation, in Government of the
State of Kelantan v Government of the Federation of Malaya and Tunku Abdul
Rahman Putra Al Haj [1963] MLJ 355 (High Court, Federation of Malaya). The
challenge failed, although the applicability of the basic structure doctrine
was left open. Yet, Kelantan’s case is maintainable in the sense that such a
fundamental alteration to the federal structure plausibly required that
Kelantan be consulted over this change. One does not need to resort to the
basic structure doctrine to argue this; it can be seen as a requirement of
convention, and therefore an implied procedural
rather than substantive requirement.
[49] ‘Barisan
MPs Won’t be There’ The Straits Times
(Singapore, 8 December 1965).
[50] Thio
Li-ann (n 2) 4.059; and Chan Hiang Leng Colin v Public Prosecutor [1994] 3 SLR (R) 209
(SGHC) [64].
[51] For
the complexity and continuing story of changes to the process of constitutional
amendment, see Tan and Thio (n 2) 116ff.
[54] P
Leyland, The Constitution of the United
Kingdom: A Contextual Analysis (2nd ed, Hart Publishing 2012) ch 3.
[57] An
interesting case is Myanmar, whose 2008 Constitution entrenches basic
provisions with a special majority plus a referendum requirement, while leaving
detailed provisions to special majority protection only. It is submitted that
by doing so, the constitution-makers effectively defined the basic structure
and provided a means to change it. Accordingly, in my view, basic structure has
no relevance in this context: Andrew Harding, ‘Constitutional Change in
Myanmar: Process v Substance’ (2014) Myanmar Law Working Paper No 2, Centre for
Asian Legal Studies, National University of Singapore <http://law.nus.edu.sg/pdfs/cals/working_papers/Myanmar/MWPS002.pdf>
accessed 17 August 2015.
[58] N
Jayawickrama, ‘Reflections on the Making and Content of the 1972 Constitution:
An Insider’s Perspective’ in A Welikala (ed), The Sri Lankan Republic at 40: Reflections on Constitutional History, Theory
and Practice (Centre for Policy Alternatives 2012).
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