Singapore Management UniversityInstitutional Knowledge at Singapore Management University

Research Collection School Of Law School of Law

11-2014

The basic structure doctrine in Singapore: A replyBenjamin Joshua ONGSingapore Management University, benjaminjong@smu.edu.sg

Follow this and additional works at: https://ink.library.smu.edu.sg/sol_researchPart of the Asian Studies Commons, and the Public Law and Legal Theory Commons

This Journal Article is brought to you for free and open access by the School of Law at Institutional Knowledge at Singapore Management University. Ithas been accepted for inclusion in Research Collection School Of Law by an authorized administrator of Institutional Knowledge at SingaporeManagement University. For more information, please email libIR@smu.edu.sg.

CitationONG, Benjamin Joshua. The basic structure doctrine in Singapore: A reply. (2014). Singapore Law Gazette. 1-10. Research CollectionSchool Of Law.Available at: https://ink.library.smu.edu.sg/sol_research/2452

The Basic Structure Doctrine in Singapore: A Reply

Introduction

In The Constitution of Our Constitution: A Vindication of the Basic Structure Doctrine ,1 Mr Calvin Liang and Ms Sarah Shi (“the authors”) explore the “‘basic structure doctrine”, which “posits that a constitution has certain written or unwritten features so fundamental that they cannot be abrogated through constitutional amendments”, in the context of Singapore. They argue that “the Legality Principle against the separation of powers form the basic structure of the Constitution of the Republic of Singapore”, and that Singapore’s constitutional actors have openly acknowledged this. Moreover, they argue that the “basic structure” must exist by virtue of the very nature of a constitution, or at least of Singapore’s Constitution.2

To the contrary, it is argued in this article that the local case law does not support the “basic structure” doctrine. At most, it supports the truism that the Constitution features several fundamental principles, but these principles are either not necessarily “basic” in the strict sense of being unchangeable or are too general to be of use as a “basic structure”. Moreover, the reasons for the doctrine of a “basic structure” do not necessitate the particular basic structure advocated by the authors or the level of generality at which it has been pitched. Instead, the true safeguards against constitutional change that severely curtails subjects’ rights are political in nature.

The Meaning of the Basic Structure Doctrine

The “basic structure doctrine” comes from the Indian case of Kesavananda Bharati v State of Kerela3 (“Kesavananda”). Interestingly, Kesavananda represented an increase, not a decrease, in Parliament’s powers of constitutional amendment: the majority (of seven against six) overruled an earlier case4 which held that no amendments to the fundamental rights provisions in the Constitution were allowed, favouring instead the idea that only the basic structure cannot be amended.

Some of the Judges in Kesavananda saw the issue as one of imposing legal limits on constitutional amendment;5 others saw it as one of pointing out logical limits on constitutional amendment (viz that the Constitution cannot be changed so drastically that it ceases to be the same Constitution);6 and yet others merely pointed to non-legal political duties not to make certain types of amendment.7In other words, the “basic structure” refers to something more than a set of important features of the Constitution: it refers to: (i) features that legally or logically cannot be abrogated; or, perhaps, (ii) features that politically should not be abrogated. Let us focus on: (i), since (ii) is not the business of the Courts.

In the constitutional law context, it is, therefore, necessary to distinguish between two meanings of the word “basic”: concepts which are very important and concepts which are unchangeable. The two may overlap, but are not the same. Let us focus primarily on the second meaning (which is the meaning in Kesavananda), for discussing the first meaning runs the risk of stating the obvious: since all constitutions, by their “very nature”, play the basic roles of “power-defining” and “power-limiting”,8 the debate would then become merely a political one about the merits of schemes of division of power, and would only become a legal debate if there are schemes which are either fundamentally necessary or repugnant to the core of the Constitution.

There are, therefore, two questions to consider:

1. Whether there are features of the Singapore Constitution which it is not legally possible to change; and

2. If not, then whether there are features of the Singapore Constitution which, if removed, would lead to a product that is something other than the Singapore Constitution.

Let us refer to these as “question (1)” and “question (2)”. A study of the cases reveals that the answer to both is no.

Does Singapore’s Constitution Have a “Basic Structure”?

Let us examine the different contenders for the basic structure of Singapore’s Constitution.

The “Legality Principle” and the Availability of Judicial Review: Teo Soh Lung v Minister for Home Affairs (“Teo Soh Lung (HC)”)9 and Chng Suan Tze v Minister for Home Affairs (“Chng Suan Tze”)10

In Teo Soh Lung (HC), Chua J rejected the submission that there are constitutional amendments which Parliament has no legal power to make; to hold otherwise, he said, would be “usurping Parliament’s legislative function contrary to art 58 of the Constitution”.11 He distinguished Kesavananda on the grounds of differences between Indian and Singaporean constitutional history.12

The authors reply that Chua J erred in neglecting the “Legality Principle”13 and in focusing on the text of art 58 to the exclusion of the possibility of implied limits to amendment which should be, as the Privy Council appeared to suggest in Hinds v R14 (“Hinds”), “taken for granted”.15 However, these arguments do not establish that there are legally unchangeable features of the Singapore Constitution.

The authors begin by asserting the importance of the “Legality Principle” from Chng Suan Tze that “All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power”, which they say flows from “the separation of powers and the need for a system of checks and balances on powers”.16 But even if this is true, accepting it merely postpones the question: why is it legally impossible for Parliament to abrogate the rule of law? Three problems em erge.

The first issue has to do with question (1) as defined above. In India, an answer to the question in the previous paragraph is based on popular sovereignty: Sikri CJ in Kesavananda said that constitutional amendments which go against the popular “common understanding” or ignore it by causing “the very democratic principles which [Parliament] appeal[s] to” in invoking the process of constitutional amendment to “disappear” 17 are forbidden. This is because, as Shelat J put it, the invocation of popular s overeignty in the Preamble to the Indian Constitution is the “key to the understanding of the Constitution”.18 It is also the key to the distinction between the constitutional histories of India and of Singapore to which Chua J alluded.

To be fair, it is unclear whether this means that it is legally impossible for Parliament to make such constitutional amendments in India, or merely that the people reserve the political power to resist such an amendment even if it is legally valid. Nonetheless, it does not matter to Singapore, where, by contrast, the power of constitutional amendment is not explicitly made ultimately contingent on the approval of some other body such as “the people”, nor is the power said to have been delegated by “the people”.

Second, what, in the context of constitutional amendment, are the “limits” to which the “Legality Principle” as it is formulated refers? All that the dictum from Chng Suan Tze says is that judicial review is possible; it says nothing about the grounds or standards of review. The “Legality Principle” therefore cannot be used, as the authors do, to answer the question of what the content of the “basic structure” is. Moreover, a claim that the “basic structure” is simply that there are limits to executive power would answer question (2) affirmatively but be an empty, and thus unhelpful, claim: the mere existence of limits to power is a feature inherent in the act of delegation of power; since it is by definition impossible for delegated power not to have limits (for, otherwise, it would be transferredpower), it would not add anything to say that it is also unlawful.

Third, similarly, it does not follow from the idea that “all power has legal limits” that “ the courts must be able to examine the exercise of discretionary power”19 (emphasis added). While it may be that “[i]t is emphatically the province and duty of the [body with judicial power] to say what the law is”,20 this does not aid our enquiry as it tells us nothing about exactly how “the law” in Singapore affects validity or how exactly “the law” says judicial review is to be performed. It may be that the basic structure is simply that there must be judicial power, but this does not address the question of whether the basic structure renders unlawful certain constitutional amendments which define the scope of judicial power.

In short, besides the circularity in the authors’ asserting the importance of the “Legality Principle” and then criticising Chua J’s rejection of the basic structure doctrine because it conflicts with it,21which assumes the very thing which the authors aim to prove, the “Legality Principle” does not contain enough content to form a basic structure which is fit for purpose. Let us now examine the recent cases cited by the authors to see whether this problem may be solved through other principles.

The Separation of Powers: Yong Vui Kong v Public Prosecutor22 (“Yong Vui Kong”) and Mohammad Faizal bin Sabtu v Public Prosecutor23 (“Mohammad Faizal (HC)”)

It is not necessarily true that that the Legality Principle applied in Yong Vui Kong cannot be changed by Parliament. On the contrary, the Court accepted that it can: in holding that there “will (or should) be few, if any, legal disputes between the State and the people from which the judicial power is excluded”24 (emphasis added), the Court acknowledged that there may be some matters which are not susceptible to judicial review. There is no conflict between this and the “doctrine of separation of powers” which the Court held to be the basis of the “fundamental law” of Singapore25and the authors concluded to be part of the basic structure26: the doctrine is capable of encompassing partial separation of powers, and, more fundamentally, says nothing about the content or scope of those powers.

The authors characterise Yong Vui Kong as having “trump[ed] the argument that constitutional powers may be non-justiciable”.27 However, the hypothetical situations in which review would be available – if the Cabinet were biased, acting in bad faith, or in breach of the procedural requirements in art 22P of the Constitution, eg if it did not meet to discuss a clemency petition or made its decision based on a coin toss 28 – are not about the separation of powers per se; they concern only the manner in which one of the powers is to be exercised. Neither do they concern the Courts’ policing the limits to powers: the Legality Principle is concerned with the extent of vires,29 not the ways in which discretion is exercised or whether or not it is exercised.

It may now be argued that it is these grounds of review that form the “basic structure”. But the grounds are contingent on legislative approval: the judicial review jurisdiction was said to cover “every legal dispute on a subject matter in respect of which Parliament has conferred jurisdiction on”30 (emphasis added). The ratio of Yong Vui Kong – the real reason why the “Legality Principle” can be said to have “trump[ed] the argument that constitutional powers may be non-justiciable”31 – is that the power in question was said to be a legal power, as opposed to a “purely personal discretion”, for the Court stressed for the first time that only “legal powers … have legal limits”32 (emphasis in original). The matter cannot be said to be based on an unabrogable basic feature that demands that judicial review be possible, for if, hypothetically, art 22P did not exist, then there would be no power of clemency at all and thus no right of judicial review to abrogate.

These points may be further illustrated by turning briefly to Mohammad Faizal (HC), which the authors cite as the “clearest recognition of the basic structure doctrine”.33 In fact, the words “basic structure”34 in that case referred to the idea in Hinds that it is, in a Westminster-style constitution, “taken for granted that the basic principle of separation of powers will apply”.35. With respect, however, this is not strictly relevant in Singapore, where, to use the words of the minority in Hinds, “[t]he principle that there should be a separation of powers between the three organs of government is not just taken for granted. Effect is given to that principle by the written terms of the Constitution”36 through arts 38, 23(1), and 93 of the Singapore Constitution which explicitly vest legislative, executive, and judicial powers in the Legislature, the Executive, and the Judiciary, respectively. The crux of Mohammad Faizal was thus not about the separation of powers as a basic structure, but rather about the content of the powers, viz whether sentencing an individual is an exercise of legislative or judicial power.

Therefore, all that the basic structure doctrine allegedly adds to the law on executive clemency is that the Courts have, on occasion, some role to play in reviewing executive actions. This point has already been dealt with above.

The authors also argue that, in Yong Vui Kong, the basic structure doctrine was further used as an “interpretive tool”.37 However, the fact that a constitutional principle is so significant that it leads to an interpretive norm does not mean that it therefore cannot lawfully be abrogated. On the contrary, if all that the principle does is to give rise to implication or interpretation, then surely the latter can be trumped by an express provision to the contrary;38 this would not count as an abrogation of the principle, but merely a statement of its scope, ie that it simply does not apply in such a manner as to give rise to that implication or in terpretation.

Constitutional Supremacy: Tan Eng Hong v Attorney-General39 (“Tan Eng Hong”)

The authors also seek to link the separation of powers with constitutional supremacy. Thus, they say that the Court in Tan Eng Hong “adopted a functional analysis; reasoning from the function of the Constitution to its necessary components”, ie from the Constitution’s role in maintaining the rule of law and protecting fundamental liberties to the necessary feature of constitutional supremacy.40 With respect, this begs the question: constitutional supremacy can only be said to be necessary if we presuppose that the functions of the Constitution are necessary, but those functions are themselves defined by the Constitution which claims supremacy.

Moreover, although it cannot be denied that constitutional supremacy is a vital feature of the Constitution, it does not follow that it cannot be abrogated by an Act of Parliament, either because such an amending Act would be unlawful or because it would make the Constitution lose its identity. There are at least two ways to look at the matter:

1. First, an Act incompatible with the Constitution is void simply because art 4 says so. Consequently, to attempt to repeal art 4 by legislation is not unlawful; it is simply an impossible contradiction in terms. Again, for the proposition that the basic structure consists of unabrogable constitutional principles to mean anything, it would have to be the case that, if those principles were not part of the basic structure, then it would be possible (to put it loosely, “physically possible”) to abrogate them; this is simply not true in the case of art 4. The answer to question (1) is, therefore, no.

2. Second, if it is lawful by virtue of art 5 for the Legislature to repeal every other provis ion of the Constitution, the only basic structure we are left with is that there should exist a document titled Constitution of the Republic of Singapore. Again, the answer to question (2) is yes, but only vacuously so.

The Content of the Basic Structure

Lessons from Foreign Jurisdictions

We have seen that many important constitutional principles are not part of the basic structure in the Kesavananda sense; the authors’ argument that it follows from the fact that judicial review has been performed without legislative interference that judicial review must be part of the basic structure41 is neither here nor there, for it confuses practice and legality.42 But even if they were, another problem arises: exactly how is the basic structure to be defined and framed? There are at least several possibilities.

The Authors’ Proposal

One possibility is, as the authors have suggested, that the basic structure is a combination of the Legality Principle and the separation of powers.43 But these are, at most, a structure. If there were some basic provisions, then answering the question of lawfulness would be as simple as checking whether the provision purportedly amended was one of the “basic” ones. By contrast, the Legality Principle and the separation of powers are principles which cannot be said either to apply or not, but rather only to apply in different ways or to different degrees. For this reason, in Australian Capital Television Pty Ltd v Commonwealth of Australia (“Australian Capital Television”), it was held that a provision may only be implied on a “structural” (as opposed to “textual”) basis if it is “logically or practically necessary for the preservation of the integrity of that structure”. 44

Democracy and Responsible Government

In Australian Capital Television, an implied constitutional right of “political communication”45 was said to be required by the “concept of representative government and representative democracy”, as evidenced by the fact that Members of Parliament and Ministers in Australia were “no t only chosen by the people but exercise their legislative and executive powers as representatives of the people”.46

The Court did not have to consider whether these implied principles were expressly abrogable. But if we imagine arguendo that they could not be, this case would illustrate the difficulty of defining the basic structure. Which would be a better candidate for the basic structure of Singapore’s Constitution: the Legality Principle, or representative democracy? Neither is necessarily more correct. If it is the latter, given the reasoning from the provisions in the Australian Constitution about the election of democratic representatives, it may well be that the “basic structure” leads to the politicalremedy of removing the unsatis factory members of legislature or the executive through democratic processes47 rather than the legal remedy of judicial review.

Similarly, in Federal Commissioner of Taxation v Munro, it was held that “the Constitution is for the advancement of representative government”, and that different types of powers are “capable of assignment … to more than one branch [legislative, executive, or judicial] of government … [d]eny that proposition, and you seriously affect the recognised working of representative government”.48This is significant because it puts paid to the idea that question (2) may be answered by pointing to a particular specific definition of some or all of the three powers.

Fundamental Rights and the Principal Aim of the State

In Kesavananda too, judicial views differed as to the content of the basic structure. While Sikri CJ listed constitutional supremacy; republicanism and democracy; secularism; separation of powers; and federalism,49 which are features of the framework of the State, Shelat and Grover JJ added such substantive values as human dignity, fundamental freedoms, and welfarism.50 Ray J, by contrast, in rejecting the basic structure doctrine, said that the crux of a constitution was the “great ends” of “the safety, the greatness and the well-being of a people”.51 This demonstrates the difficulty in determining not only the specific content of the basic structure, but also the level of generality at which it should be described.

The Particular Role of Judicial Review

Kesavananda also displays diversity of judicial opinion about the role of judicial review, which was the issue in Teo Soh Lung. Shelat and Grover JJ described it as being of “paramount importance” and part of the “heart and core of a democracy”;52 Khanna J explicitly said that abrogating it “strikes at the basic structure of the Constitution”.53 But Khanna J also warned that, as for the manner in which judicial review is conducted, “Judicial Oligarchy” must be avoided as “[t]he proper forum to fight for the wise use of the legislative authority is that of public opinion and legislative assemblies”, otherwise “people of fundamentally differing views” may be neglected.54 Similarly, Hegde and Mukherjea JJ acknowledged the usefulness of judicial review but suggested that legislative checks and balances might sometimes suffice:

If [a] question … is considered as the exclusive function of the executive, then, not only the judicial review will be taken away, even the legislature will not have the opportunity of examining the correctness or appropriateness …” (emphasis added).55

The Case of Singapore

In Singapore, by contrast, it is difficult to identify a defining overarching principle which, if abrogated, would make the Constitution into something other than the Constitution of the Republic of Singapore. As we have seen, there are various possible candidates for an implied overarching principle.

As for an express one (as is present in the Constitutions of Mauritius,56 India,57 Germany,58 and Belize,59 to which the authors have alluded), the Proclamation of Singapore declares Singapore to be “forever a sovereign democratic and independent nation, founded upon the principles of liberty and justice and ever seeking the welfare and happiness of her people in a more just and equal society” ,60 but it is doubtful whether this should be taken to be more than political rhetoric. The Constitution explicitly mentions sovereignty, independence, and liberty;61 the drafters could easily have mentioned explicitly the other values in the Proclamation such as “democra[cy]” and “justice” if they wished to make these true constitutional principles.

Of course, this does not mean that Singapore is not democratic – it patently is in at least one sense, for the Constitution specifically provides for elected representatives. Rather, it may be taken to exclude a particular conception of democracy, eg “[not only] that the people must decide who should govern them, [but also] the principle that fundamental rights should be protected by an impartial and independent judiciary”.62 On the other hand, it is equally plausible that the drafters of the Constitution did intend to enshrine such a view: such rights would complement the Legality Principle by describing the “legal limits” to executive and legislative power.63 Yet another possible view is that the primary purpose of the “freedoms of the people” is to facilitate “free elections” and prevent the “Government so elected … perpetuat[ing] itself”.64

All these equally plausible possibilities illustrate the difficulty in searching for a “basic structure” or saying that “democracy” is the basic structure: such moves either shore up ambiguities that add little to existing difficulties such as determining the appropriate level of “judicial restraint” (it is unclear how the authors’ observation that “the basic structure doctrine may not necessarily expand the scope of judicial review”65 (emphasis added) helps to address the established common-law problem of determining exactly which the “appropriate cases” in which to exercise restraint are), or risk crossing the boundary from constitutional interpretation into imputing to the Constitution ideas which are in reality the creation of the common law.

In short, therefore, we cannot give a definite answer to question (2); even if we could, it is likely that our answer would consist “not [of] concrete provisions of the Constitution, but … instead … statements of general principles … There can be wide differences of opinion about the scope and application of each of these principles… these principles are too general to provide either guidance or any real basis of agreement”.66

For this reason, the authors’ claim that “it may even be the case that a constitutional am endment to abolish the elected presidency may run into basic structure objections even though it is supported by referendum” 67 is misconceived. Even if a basic structure doctrine did apply in Singapore, the Presidency, being part of the Executive, cannot be said to be more “basic” than the existence of the Executive itself.

Analogies with Foreign Constitutions

The authors argue that it “seems absurd” to suggest that the basic structure doctrine cannot be said to apply in Singapore by analogy with Germany and India because Singapore’s Constitution has no eternity clause (unlike art 20 of Germany’s Basic Law) and no popular supremacy clause (unlike the Preamble of India’s Constitution).68 However, these differences are highly significant.

As for Germany, the authors cite a dictum quoted by the Federal Constitutional Court that “[t]here are constitutional principles that are so fundamental and so much an expression of a law that has precedence even over the constitution that they also bind the framers of the constitution”. However, in context, the content of these “fundamental” “constitutional principles” was the explicitstatement in art 20(1) of the Basic Law: “The Federal Republic of Germany is a democratic and social federal state”. Hence, the basic structure doctrine applies in Germany only as a matter of the “inner unity” of the text of the Basic Law.69 (Interestingly, even this doctrine is qualified by art 146 of the Basic Law: “This Basic Law … shall cease to apply on the day on which a constitution freely adopted by the German people takes effect".)

The authors cite an article which argues that the idea of an “implied eternity clause” may help distinguish between “the amendment of an existing constitution and the establishment of a new constitution”.70 However, it is doubtful whether such an “implied” clause can trump express wording to the contrary. Moreover, the difficulty of determining exactly what the implied eternity clause covers would remain.

As for India, Kesavananda suggests that, notwithstanding the majority’s judgments, the basic structure can be changed. It may be true that “what Parliament had not given, it could not take away”.71But as Khanna J pointed out, “the people in the final analysis are the ultimate sovereign and if they decide to have an entirely new constitution, they would not need the authority of the existing constitution for this purpose”, even in the absence of an explicit comprehensive scheme for constitutional amendment.72 Indeed, sovereignty is vested in “the people of India” as noted in the Preamble of the Constitution of India.

But the same Preamble recites that “the people” had acted through not just “constituent power” (as the German Basic Law states73), but the institution of “our constituent assembly”. It may, therefore, be possible for “extra-constitutional methods like revolution”74 (not in the sense of violent uprising, but simply in the sense of fundamental change) to be led by a democratically representative body – such as the Indian Parliament. The debate thus becomes merely one of whether the body is truly democratically representative 75 – an important debate, but hardly one that is specific to the particular context of constitutional reform.

Conclusion: A Political Constitution

Constitutional theory is all about the balance of power, but this balance need not be struck by purely legal means. For example, Dicey posited two political limits to legislative power: the “external limit” (which is that the sovereign cannot, in practice, make legislation that subjects will disobey) and “internal limit” (the sovereign will not, in practice, make such legislation that it is “hardly conceivable” that it will as it will go against its interest to do so).76

The authors state that a basic structure is necessary for the Constitution to achieve its basic purpose. But it is equally arguable, as the minority said in Hinds that if a “great deal [were] left to necessary implication, [then] a written constitution would largely fail to achieve its object. If it does not define clearly what Parliament can do and cannot do by ordinary enactment, then the Government and Parliament of a territory may find that as a result of judicial decision after a considerable lapse of time all the time spent in legislating has been wasted and that laws urgently required have not been validly enacted”.77 The Courts must have some theory behind how they go about constitutional interpretation; this theory may well be that “public administration is not principally about stopping bad administrative practices but encouraging good ones”.78

It might seem unthinkable for the Courts to stand idly by in the face of “oppressive and wholly undemocratic legislation”.79 But such legislation would be exactly that – validly made legislation, which has the force of law. Unless the Courts are willing to abandon the notion that express words, however unsavoury one may think them to be, trump implied concepts,80 the Courts will, in such a case, be doing something other than giving effect to the law. If, instead, we posit that the limits postulated by Dicey are the true limits to the power of constitutional amendment in Singapore, then, while there is a meaningful distinction between amending the Constitution and

replacing it with a new Constitution,81 in the case of the latter, it should not be assumed that the Courts ought to play a leading role in reform.

Implicit support for this view may be inferred from dicta from Jeyaretnam Kenneth Andrew v Attorney-General, where the “green-light” model of the State, which focuses on “seek[ing] good government through the political process and public avenues rather than redress[ing] bad government through the courts”,82 was explicitly endorsed.83 While the Courts may, in time, see the need to examine more closely the content of legislative debates rather than simply assuming that the Legislature has carefully considered all relevan t matters,84 they can do so at most as part of the process of interpretation;85 they cannot override the express words of legislation.86

It is, therefore, submitted that the true position in Singapore is that espoused by Kirby P in Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations 87:

In the end, it is respect for long standing political realities and loyalty to the desirable notion of elected democracy that inhibits any lingering judicial temptation, even in a hard case, to deny loyal respect to the commands of Parliament by reference to suggested fundamental rights that run ‘so deep’ that Parliament cannot disturb them.

This conclusion does not leave our citizens unprotected from an oppressive majority in Parliament. The chief protection lies in the democratic nature of our Parliamentary institutions.

To apply a “basic structure doctrine” to the extent of holding that amendments to the contrary are void is essentially to denounce a piece of legislation as “not law”. But, as Hart argued, this would neglect the more important questions: If it is not truly law, how did it ever come to be considered valid law, not least of all by the Legislature itself? Perhaps it, though not truly law, is better than the law? 88 While the question of validity is a legal question, these questions are arguably political questions for the people to answer. It is, therefore, best that they be answered through democratic fora.

Courts performing judicial review are, to be sure, democratic institutions as they seek to give effect to democratic will89, but, even if their role is cut down, Parliament itself can also be equipped to answer these questions, albeit acting qua elected representative body rather than qua legislative authority90 (and perhaps taking a more directly representative approach than usual). In fact, notwithstanding the absence of a preamble like that in India’s Constitution, it may even be argued that the true Grundnorm is the social fact of popular sovereignty,91 such that even sweeping constitutional change following popular unhappiness with a legislative amendment cannot wholly be characterised as being extra-legal.

In short, the authors have rightly identified the Legality Principle and the separation of powers as key constitutional principles, but these principles may well play out in such a way as to suggest th at the Singapore Constitution is not only a legal document, but also a political one. The Constitution seeks to protect individual rights and uphold the rule of law, and it does so by separating each branch of the State and by establishing mutual checks and balances, but it is not at all clear that it does so via an immutable “basic structure”. This is, furthermore, not a bad thing: while enduringness is a strength of a constitution, inflexibility can be just as much a weakness.92 ► Benjamin Joshua Ong*

* BA (Hons) (1st Class) Jurisprudence (Oxon); currently reading for the BCL (Oxon).

Notes

1 Calvin Liang and Sarah Shi, Singapore Law Gazette (August 2014), p 12.

2 Ib id, preamble, [3], [23]ff, [37]ff.

3 AIR 1973 SC 1461.

4 I C Golak Nath v State of Punjab AIR 1967 SC 1643.

5 Sikri CJ, Shelat, Hegde, Grover, Jaganmohan Reddy, Khanna, and Mukherjea JJ, cited Subba Rao, “The Two Judgments: Golaknath and Kesavananda Bharati” (1973) 2 SCC (Jour) 1, J-18.

6 Ray, Mathew, and Beg JJ, cited ib id, J-18.

7 Mathew J, [1714], cited ib id, J-15.

8 Supra (note 1 above)at [38].

9 [1989] 1 SLR(R) 461.

10 [1988] 2 SLR(R) 525.

11 Supra (note 9 above)at [35].

12 Ib id, [37]-[47]; supra (note 1 above)at [16].

13 Supra (note 1 above) at [8].

14 [1977] AC 195.

15 Supra (note 1 above)at [9].

16 Supra (note 10 above)at [86], cited supra (note 1 above) at [2]-[3].

17 Supra (note 3 above), p 1534 at [291]-[295].

18 Supra (note 3 above), p 1577 at [523].

19 Supra (note 16 above).

20 Marbury v Madison 5 US (1 Cranch) 137 (1803), 177.

21 Supra (note 1 above) at [8].

22 [2011] 2 SLR 1189.

23 [2012] 4 SLR 947.

24 Supra (note 22 above) at [31].

25 Ib id at [31].

26 Supra (note 1 above) at [26]-[28].

27 Supra (note 1 above) at [27].

28 Supra (note 22 above) at [83], [85], [111]-[112].

29 Supra (note 16) at [86].

30 Supra (note 22 above) at [31].

31 Supra (note 1 above) at [27].

32 Supra (note 22 above) at [59], [78].

33 Supra (note 1 above) at [34].

34 Supra (note 23 above) at [11].

35 Supra (note 14 above), 212D-E, cited ib id at [12].

36 Supra (n 14 above), 238H-239A.

37 Supra (note 1 above) at [27].

38 This is trite law, and is evident in such cases as AAG v Estate of AAH, deceased [2010] 1 SLR 769 at [7]; Seow Wei Sin v Public Prosecutor [2011] 1 SLR 1199 at [21]; Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372, 406B; and R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115, 131F.

39 [2012] 4 SLR 476.

40 Supra (note 1 above) at [29].

41 Supra (note 1 above) at [40].

42 Cf. the criticism by the authors at note 1 at [41].

43 Ib id at [3].

44 (1992) 177 CLR 106, 135.

45 Ib id, 170.

46 Ib id, 137-138.

47 Cf. the fact that the Australian Constitution makes no explicit mention of fundamental rights because of a “deliberate” choice based upon a faith in the democratic process to protect Australian citizens against unwarranted incursions upon the freedoms which they enjoy”, such protection to be done “by the constituencies and not by the courts”: ib id, 182, (per Dawson J, dissenting).

48 (1926) 38 CLR 153, 178-179

49 Supra (note 3 above), p 1535, at [302].

50 Supra (note 3 above), p 1603 at [599].

51 Supra (note 3 above), p 1693 at [959].

52 Supra (note 3 above),pp 1601-1602 at [594].

53 Supra (note 3 above), p 1902 at [1548(2)].

54 Supra (note 3 above), pp 1901-1902 at [1547]

55 Supra (note 3 above), p 1639 at [722].

56 Section 1, Constitution of Mauritius, as interpreted in State of Mauritius v Khoyratty [2007] 1 AC 80.

57 Preamble, Constitution of India.

58 Preamble and Arts 20 and 79(3), Basic Law for the Federal Republic of Germany, trans Tomuscha, Currie, and Kommers; available at: https://www.btg-bestellservice.de/pdf/80201000.pdf (accessed 3 October 2014).

59 Section 1, Constitution of Belize, as interpreted in Bowen v Attorney-General BZ 2009 SC 2 (cited supra (note 1 above) at [17], though it is here argued that the Court in fact did not go so far as to hold that the principle of democracy was part of the “basic structure” of the Constitution of Belize in the Kesavananda sense).

60 Proclamation of Singapore, part of preamble to Independence of Singapore Act 1965.

61 Article 3; art 6(1)(a); and Part IV respectively.

62 [2007] 1 AC 80, [12].

63 In Singapore, such limits include (for example) the requirement that deprivation of life or personal liberty be done only “in accordance with law” (art 9(1)) and that the rights to freedom of speech, expression, assembly, and association can only be restricted by Parliament, which must “consider” the restrictions necessary on one of a limited number of grounds.

64 Supra (note 5 above), J-6.

65 Supra (note 1 above) at [47].

66 Tripathi, “Kesavananda Bharati v The State of Kerela: Who Wins?”, (1973) 1 SCC (Jour) 3, J-32.

67 Supra (note 1 above) at [48].

68 Supra (note 1 above) at [44].

69 1 BVerfGE 14 (1951), cited supra (note 1 above) at [42]; reproduced in Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (2e, 1997), p 62 at [2]-[3].

70 (2011) 44 Israel LR 321, 336-338, cited supra (note 1 above) at [42].

71 Supra (note 1 above) at [43].

72 Supra (note 3 above), p 1861 at [1444].

73 Preamble, Basic Law for the Federal Republic of Germany, supra (note 58 above).

74 To use the phrase of Khanna J, supra (note 3 above), p 1850 at [1406]. It is notable that Khanna J saw undesirable revolution as the product of inflexibility in constitutional amendment, eg if “the overwhelming majority of people” were to want to “take away or abridge fundamental rights” but have such an amendment blocked by the judiciary.

75 Supra (note 3 above), p 1624 at [669]; p 1628 at [680].

76 Dicey, Introduction to the Study of the Law of the Constitution (10e, 1959), pp 76-81.

77 Supra (note 14 above), pp 238-239.

78 Jeyaretnam Kenneth Andrew v Attorney-General [2014] 1 SLR 345 at [48].

79 R (Jackson) v Attorney-General [2006] 1 AC 262, [102], cited supra (note 1 above) at [50].

80 Supra (note 38 above).

81 Supra (note 3 above), eg p 1750 at [1163].

82 Chan, “Judicial Review – From Angst to Empathy” (2010) 22 SAcLJ 469, p 480.

83 For a comment on the difference that the green-light model made to the case, see Ong, “Public law theory and judicial review in Singapore” (2013) Singapore Law Watch Commentary (Issue 1/Dec 2013), p 3

84 As it did in Vellama d/o Marie Muthu v Attorney-General [2013] 4 SLR 1. See also the arguments in Kavanagh, “Proportionality and Parliamentary Debates: Exploring Some Forbidden Territory” (2014) 34 OJLS 443 (albeit in a different context).

85 Section 9A(2), Interpretation Act (Cap 1).

86 Supra (note 38 above).

87 (1986) 7 NSWLR 372, pp 405D-E

88 Hart, “Positivism and the Separation of Law and Morals” (1958) 71 HarvLRev 493, section IV.

89 Kavanagh, “Participation and Judicial Review: A Reply to Jeremy Waldron” (2003) 22 Law and Philosophy 451.

90 See generally the possible models in Weill, “Evolution vs Revolution: Dueling Models of Dualism” (2006) 54 American Journal of Comparative Law 429.

91 Kirby, 1997 Deakin Law School Public Oration: Popular Sovereignty and the True Foundation of the Australian Constitution; available at: http://www.hcourt.gov.au/assets/publications/speeches/former-justices/kirbyj/kirbyj_deakin2.htm (accessed 6 October 2014), fn 35.

92 Supra (note 3 above), p 1850 at [1406]; p 1859 at [1436].