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 19^th 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.

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[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.

[4]    Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (the Constitution).

[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).

[17]   For a well edited version of this epic case, see Tan and Thio (n 2) 157ff.

[18]   (n 6).

[19]   Zafar Ali Shah v Pervez Musharraf PLD 2000 SC 869 (Supreme Court of Pakistan); and a recent case on the 18^th 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.

[23]   See further Kevin Tan (n 11).

[24]   For citations, see (n 11).

[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.

[32]   See, regarding the constitutional primacy of the RSIA, Harding (n 11) 354ff.

[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).

[35]   n 1.                                            

[36]   n 21.

[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.

[41]   Liang and Shi (n 1).

[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.

[44]   See further LR Penna (n 26).

[45]   See Mohamad Faizal bin Sabtu (n 1) (Chan CJ).

[46]   Harding (n 42).

[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.

[52]   This is, in fact, virtually what was argued by Lord Lester QC in Teo Soh Lung’s case (n 21).

[53]   n 11.

[54]   P Leyland, The Constitution of the United Kingdom: A Contextual Analysis (2nd ed, Hart Publishing 2012) ch 3.

[55]   n 1.

[56]   n 11.

[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).