Towards a “Thin” Basic Structure Doctrine in Singapore (I-CONnect Column)

—Jaclyn L. Neo, National University of Singapore Faculty of Law

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2018, see here.]

The basic structure doctrine has travelled some ways since it was first articulated by the Indian Supreme Court in the case of Kesavananda Bharati v State of Kerala.[1] The doctrine imposes substantive limits on constitutional amendment powers: it holds that while the legislature has power to amend the constitution according to stated procedure, such power is subject to an implied limitation that the amendment must not destroy the “basic structure” or “basic features” of the constitution. A key characteristic of the doctrine is that it is judicially developed. The judiciary deduces certain core characteristics of the constitutional order from the text, underlying philosophy, and history, and declares these to be unamendable.

The applicability of the basic structure doctrine in Singapore has emerged as a persistent question for constitutional scholars and judges here. The Singapore Constitution does not prescribe explicit limits to amendment powers, only procedural ones. The doctrine first came up for consideration in the High Court in the 1989 case of Teo Soh Lung v Minister for Home Affairs.[2] There, the Court declined to extend the Kesavananda doctrine to the Singapore constitution on the basis that Singapore’s constitutional drafting history differed from India’s, and that accordingly, there was no historical or conceptual basis for extending such limits to Parliament’s power to amend the Singapore constitution. This was affirmed in a 1990 case of Vincent Cheng v Minister for Home Affairs and others.[3]

In more recent times, the Singapore courts have had to revisit this issue, including in the 2017 case of Ravi s/o Madasamy v Attorney-General and other matters (“Ravi s/o Madasamy”).[4] Here, the Singapore High Court was asked to consider whether recent constitutional amendments imposing stricter eligibility criteria for candidates seeking to run for President and introducing reserved elections were unconstitutional. The applicant argued that the constitutional amendments violated the constitution’s basic structure as it interferes with the right to stand for public office and more broadly equal protection guarantee under the constitution. The High Court again declined to extend the Kesavananda basic structure doctrine to the Singapore Constitution. However, unlike in Teo, it engaged critically with the proposal that the Singapore Constitution has a basic structure and discussed what that would mean for constitutional doctrine.

Basic Structure vs Basic Structure Doctrine 

In this case, the Court drew a distinction between the legal fact of a basic structure and the basic structure doctrine. It observed that the idea that the Singapore constitution has a basic structure had been suggested in several cases. For instance, in Mohammad Faizal bin Sabtu v Public Prosecutor,[5] the High Court held that “[t]he principle of separation of powers, whether conceived as a sharing or a division of sovereign power between these three organs of state, is [] part of the basic structure of the Singapore Constitution”. Later, in the case of Yong Vui Kong v PP,[6] the Court of Appeal appeared to acknowledge the existence of a basic structure in the Singapore Constitution, stating that the separation of powers and the right to vote were examples of features that could form part of the basic structure. While the Court of Appeal did not go on to decide whether the basic structure doctrine was applicable to Singapore, it suggested as a general ‘test’ that a basic feature or structure had to be “fundamental and essential to the political system that is established thereunder.”

However, while there is increasingly broad judicial support for the legal notion that the Singapore constitution indeed has a basic structure, it remains unclear as to what legal consequences should follow. Singapore courts remain unwilling to fully embrace the Kesavananda doctrine. Indeed, the High Court in Ravi s/o Madasamy stated that “any ostensible support of the basic structure doctrine was rather more minimalist and related to a “thin” conception.”

Two alternative legal doctrines were discussed by the High Court as possibly being more appropriate for this “thin” basic structure doctrine.

The first is to see the basic structure as requiring an interpretive principle that the constitution and any constitutional amendments should be interpreted, where possible, in a way that does not violate the basic structure. Such an interpretive principle would be akin to the English principle of legality whereby courts assume that Parliament does not intend to infringe upon common law rights unless it uses clear words in the statute to do so. Notably, the government appeared to express support for such an interpretive principle.

The second possibility is for the legal doctrine to protect a narrower set of basic features. Kevin Tan, for instance, argues for a basic structure doctrine that puts “minimal constraints” on Parliament’s powers to amend the Singapore Constitution. The only constraints Tan suggests are those based on the structural matrix of the Westminster constitution, i.e. that Parliament cannot amend the constitution in a way that destroys the Westminster form of government as being based on the separation of powers and a bill of rights.[7] While the Courts have not explicitly endorsed the latter, the various endorsements of the separation of powers as being part of the basic structure of the Singapore Constitution accord well with Tan’s “basic structure of the Westminster constitution doctrine”.  Interestingly, the government conceded that if there were to be substantive limits placed on Parliament’s amendment powers, these must be necessarily restricted to the bare minimum. What further elements would be protected under this ‘narrower’ approach is remains unclear. Besides Tan’s proposal, one may also draw from Rosalind Dixon and David Landau’s argument for a more limited basic structure doctrine that guards against substantial threats to core democratic values.[8]

Basic Structure Doctrine: Complexities

The substance of the challenge in Ravi s/o Madasamy further highlights three complexities to the basic structure doctrine as a doctrine imposing substantive limits on amendment powers.

The first lies in the difficulty of identifying what forms part of the basic structure. In Ravi s/o Madasamy, the High Court held that an unqualified right to stand for public office was not “fundamental and essential” to the political system so as to be part of the basic structure of the constitution. However, the right to stand for public office forms part of the right to political participation, which could be said to be fundamental and essential to the Westminster system of representative government. This was not addressed in this case.

Secondly, compatibility of an amendment with a basic structure, where identified, depends on the standard of review adopted. Indeed, as discussed in Ravi so/ Madasamy, even if one accepts that the right to stand for public office is part of the fundamental and essential right to political participation, it does not mean that any qualifications to such a right would violate the basic structure. Most, if not all, constitutions impose certain qualifications for standing for public office, including generally benign age limitations. Whether the new qualifications would violate the basic structure, if any, depends on how stringent the courts are in allowing for departures from core principles. In this regard, Yaniv Roznai has identified at least three standards of review in descending degrees of stringency – minimal effect, disproportionate violation, and fundamental abandonment.[9] Thus, even if the Singapore courts were to adopt a basic structure doctrine that imposes substantive limits on Parliament’s amendment powers, this may still have a limited effect if the fundamental abandonment standard is adopted, whereby only an extraordinary infringement of a basic structure would result in judicial annulment of the amendment.

Thirdly, a basic structure doctrine has to strike a balance between protecting core constitutional principles and allowing legitimate institutional changes. In the context of an evolving democracy like Singapore, where the dominant party holds a sufficient majority to amend the Constitution, there have been many institutional changes that could be said to radically depart from the original Westminster design. Indeed, the challenge in Ravi s/o Madasamy concerned the office of the President, which itself was transformed in 1991 from a selected, ceremonial office to an elected office with custodial powers over fiscal decisions and civil service appointments. These initial changes affected the separation of powers in Singapore and impacted the Westminster structure of government. Thus, an argument could have been made that the 1991 amendments violated the basic structure, notwithstanding that these initial changes arguably strengthened constitutionalism as the President gained increased, though limited, discretionary powers to check the Cabinet and Parliament.

Indeed, the basic structure doctrine is frequently presented as a bulwark against government overreach. However, one could imagine situations where it is invoked by the judiciary, for whatever reason, to resist changes that the government and the electorate deem progressive. For instance, if a constitution declares that a particular religion is the religion of the state and that is declared by the judiciary to be part of its basic structure, a government, supported by the majority, could still be constrained in repealing such a provision.[10] And, vice versa. It is therefore interesting that the Singapore government, in arguing against the basic structure doctrine, contended that it may block “progressive changes”. Of course, whether changes are progressive (or retrogressive) can be value-laden judgments, subject to reasonable differences of opinion. The question is whether the judiciary or Parliament is the right branch of government to make this final determination.

Conclusion

The basic structure doctrine continues to pose fascinating and difficult questions for judicial review and constitutional interpretation. In distinguishing legal fact from legal doctrine, the Singapore case of Ravi s/o Madasamy provides further interesting insights to the debate on the proper role of the courts vis-à-vis Parliament in navigating the legality and legitimacy of constitutional amendments.

Suggested citation: Jaclyn L. Neo, Towards a “Thin” Basic Structure Doctrine in Singapore, Jan. 17, 2018, at: http://www.iconnectblog.com/2018/1/towards-a-thin-basic-structure-doctrine-in-singapore-i-connect-column/

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[1] [1973] AIR 1461.

[2] [1989] 1 SLR(R) 461.

[3] [1990] 1 SLR(R) 38.

[4] [2017] SGHC 163.

[5] [2012] 4 SLR 947.

[6] [2015] 2 SLR 1129.

[7] Kevin YL Tan, Into the matrix: Interpreting the Westminster model constitution, in Constitutional Interpretation in Singapore: Theory and Practice, 50 (Jaclyn L. Neo, ed., 2017).

[8] Rosalind Dixon and David Landau, Transnational constitutionalism and a limited doctrine of unconstitutional constitutional amendment, 13(3) International Journal of Constitutional Law 606 (2015).

[9] Yaniv Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (2017), 218-224.

[10] For more, see Richard Albert and Yaniv Roznai, Religion, Secularism and Limitations on Constitutional Amendment, Edward Elgar Research Handbook on Law & Religion (Rex Ahdar, ed., 2018, forthcoming).