Citation(2017) 29 SAcLJ 619
Published date01 December 2017
Date01 December 2017

Recent constitutional adjudication in some common law jurisdictions has embraced the basic structure doctrine that was first applied by the Supreme Court of India to the Indian Constitution. This article argues that in principle, the doctrine is or should be applicable to the Constitution of Singapore. If the theory of the doctrine is politically sound, the fact that the Singapore Constitution expressly allows its own provisions to be amended does not necessarily exclude an implied limitation on the exercise of such power. This article also puts forward a historical explanation for the applicability of the doctrine in Singapore. Finally, it argues that the supremacy of the Singapore Constitution supports the applicability of the doctrine.

I. Introduction

1 In January 1989, Parliament amended Art 149 of the Constitution of the Republic of Singapore (“Singapore Constitution”)1 and added four new provisions2 to the Internal Security Act (“ISA”). The amendment curtailed the judicial power of the courts in Art 93 to the extent that detention orders made on national security grounds under s 8 of the ISA could no longer be reviewed by the court except as provided therein.3

2 The constitutionality of the amendments was challenged in Teo Soh Lung v Minister for Home Affairs4 (“Teo Soh Lung”). Teo argued that her re-detention was illegal because it was based on grounds not connected with national security, but based on her criticisms of the illegality of her original detention. In his submissions to the court, counsel for the Minister declined to argue that the amendments could justify detention on extrinsic grounds.

3 Teo also argued that the constitutional amendment was invalid as it had the effect of destroying a basic feature of the Singapore Constitution, that is, judicial review. Teo relied on Kesavananda Bharati v State of Kerala5 (“Kesavananda”), where the Supreme Court held (by a majority) that although the Indian Parliament had power to amend the Indian Constitution6 in accordance with its provisions, such power was subject to an implied limitation that any amendment (whether by way of addition, alteration or repeal) could not destroy the basic structure or a basic feature of the Indian Constitution. F A Chua J, after reviewing the Indian and Malaysian cases, held:7

47 [T]he Kesavananda doctrine is not applicable to our Constitution. Considering the differences in the making of the Indian and our Constitution, it cannot be said that our Parliament's power to amend our Constitution is limited in the same way as the Indian Parliament's power to amend the Indian Constitution. In any case … none of the amendments complained of has destroyed the basic structure of the Constitution …

59 … Parliament has the power to amend any provision of the Constitution so long as the special procedure required for amendment is followed …

4 The Court of Appeal dismissed Teo's appeal on the ground that Teo had not made out a case on the facts that her re-detention was not based on national security grounds. The court declined to consider

the question whether the basic structure doctrine was applicable in Singapore.8

5 In parallel proceedings in Cheng Vincent v Minister for Home Affairs9 (“Vincent Cheng”), Cheng filed a similar challenge on similar grounds. Lai Kew Chai J dismissed the application on the ground that Cheng had not made out a case that there was no evidence against him. Lai J also endorsed Chua J's reasons.

6 Neither Chua J nor Lai J held expressly that the Singapore Constitution had a basic structure, but its existence would be implicit in Chua J's decision that the amendment did not destroy it. The Malaysian courts rejected the doctrine in 1977 but its relevance has been revived in a recent decision of the Malaysian Court of Appeal.10 In contrast, the

Indian Supreme Court has applied the doctrine to many other features of the Indian Constitution.11

7 This article agrees that the amended Art 149(1) did not destroy the basic structure of the Singapore Constitution as it only carved out from the judicial power recourse to judicial review in detention cases under s 8 of the ISA on national security grounds. This limited carve-out may be justified as national security, that is, the survival of the State is an overriding consideration. The legal order established under the Singapore Constitution must be preserved, protected and defended, if necessary by extreme measures. Hence, where national or economic security is threatened, Art 150 authorises the President to declare an emergency. However, judicial review remains available in all other cases.12 But the broader question remains: does the basic structure doctrine apply in Singapore?

8 This article asserts that, in principle, the doctrine is applicable in Singapore (except as set out immediately above). Chua J's reasoning for not applying the doctrine is not persuasive since he did not explain why the different origins of the Indian and the Singapore Constitutions were decisive, or even relevant, or why because the Singapore Constitution expressly allows its own provisions to be amended, it necessarily excludes an implied limitation on the exercise of such power. It is argued that both grounds are not sustainable if the theory of the doctrine is politically sound.

II. Basic structure
A. Westminster model constitution and its basic structure

9 The basic structure concerns identity. In Shorter Constitution of India,13 Dunga Das Basu wrote:

The theory of basic structure is based on the concept of constitutional identity. The basic structure jurisprudence is a preoccupation with constitutional identity. The Supreme Court has observed that ‘one cannot use the Constitution to destroy itself’. It is further observed that ‘the personality of the Constitution must remain unchanged’. Therefore, the Supreme Court while propounding the theory of basic structure, has relied upon the doctrine of constitutional identity. The word ‘amendment’ postulates that the old constitution survives without loss of identity despite the change and it continues even though it has been subjected to alteration. To destroy its identity is to abrogate the basic structure of the Constitution. This is the principle of constitutional sovereignty. The main object behind the theory of the constitutional identity is continuity and within the continuity of identity, changes are admissible depending upon the situation and the circumstances of the day. The theory of basic structure is based on the principle that a change in a thing does not involve its destruction and destruction of a thing is a matter of substance and not of form … the theory of basic structure is the only theory by which the validity of impugned amendments to the Constitution is to be judged.

10 The identity of a constitution is derived from its structure of government and the agreed political, economic and social values and aspirations of the people as a community and a nation enshrined therein. This article contends that the Singapore Constitution has such an identity, based on the principles and institutions of democratic government identified with the Westminster model constitution.

11 In 1961, Stanley de Smith described the basic structure of the Westminster model constitution as follows:14

Desperately fragile and precariously balanced, the Westminster model of parliamentary democracy remains the most sought-after of British exports to the countries of the Commonwealth. From Aden to Zanzibar nothing that can be represented as being inferior to the original will give satisfaction, and even modifications that may render it more adaptable to local conditions are apt to be viewed with suspicion …

In its widest sense it may be also be understood to comprise all the main features of the British Constitution … Among the characteristic features of modern Commonwealth constitutions are the limitations of parliamentary sovereignty, guarantee of fundamental human rights, judicial review of constitutionality of legislation …[15]

In its narrower sense – the sense in which the term is used here – the Westminster model can be said to mean a constitutional system in which the head of state is not the effective head of government; in which the effective head of government is a Prime Minister presiding over a Cabinet composed of Ministers over whose appointment and removal he has at least a substantial measure of control; in which the effective executive branch of government is parliamentary inasmuch as Ministers must be members of the legislature; and in which Ministers are collectively and individually responsible to a freely elected and representative lecture.[16]

12 Many, especially post-colonial, states have adopted constitutions incorporating similar norms and values of the legal and political order. Most, if not all, former British colonies, on attaining independence in the 1950s and 1960s, readily adopted the Westminster model. The Federation of Malaya did so in 1957 when the federating states were granted independence by the UK government.17 So did Singapore, when it joined and then separated from Malaysia in 1963 and 1965. The basic features of their respective Constitutions may not be identical due to differences in their respective political, social and cultural circumstances prevailing at the time the Constitutions were created or have evolved since then. As national values and constitutional and political norms change over time, the Constitutions may change to reflect them.

13 But as described by de Smith, the basic features of the Westminster model constitution are (a) representative government under a parliamentary system of government, (b) the separation of powers, (c) fundamental human rights, and (d) supremacy of the constitution and the rule of law.

B. Rationale of the basic structure doctrine

14 The basic structure doctrine is an implied limitation on the exercise of amending...

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