Recent Judicial Comments on the Basic Structure of the Constitution

By Swati Jhaveri (Assistant Professor, Faculty of Law, National University of Singapore)

The idea of the “basic structure” of the Constitution of Singapore has been the subject of ongoing deliberation in the courts since the case of Teo Soh Lung v Minister for Home Affairs[1].  The Constitution of Singapore can be amended by a two-thirds majority (a national referendum is only required where the issue is one of the relinquishment of sovereignty).  Due to the presence of a strong majority by one political party in the legislature this may not be a significant hurdle especially as voting is done on the basis of a party whip system.  The question of constitutional entrenchment in a system committed to constitutional supremacy as part of its text (Article 4) is therefore an important one.

This question has been addressed directly by the courts in Singapore in the form of a discussion on the ‘basic features doctrine’.  The language of the “basic features doctrine” comes from Indian constitutional law jurisprudence, most notably the case of Kesavannada Bharati v State of Kerala[2] where the Supreme Court of India held that:

every provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remains the same[3]

The Supreme Court of India has gone on in subsequent cases to identify such fundamental features of the Constitution of India that are beyond the reach of constitutional amendment.[4] The application of this doctrine was first tested in Singapore in the case of Teo Soh Lung v Minister for Home Affairs where the High Court held that:

…the 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[5]

The High Court took an originalist interpretation of the Constitution to reach this conclusion positing that “[i]f the framers of the Singapore Constitution had intended limitations on the power of amendment, they would have expressly provided for such limitations”.[6] The applicant had tried to argue that constitutional amendments which sought to immunise national security decisions from judicial review violated the basic structure of the Constitution as being in contravention of the rule of law and the separation of powers and relied on the Supreme Court of India’s decision in Minerva Mills[7] to do so.

This remained the position until the recent decision of the Singapore Court of Appeal in the case of Yong Vui Kong v Public Prosecutor[8] (Yong Vui Kong).  The applicant in the case had been convicted for trafficking drugs under the Misuse of Drugs Act and received the mandatory sentence of the death penalty under that legislation[9].   The legislation was subsequently amended to permit the imposition of a mandatory life sentence and not less than 15 strokes of the cane.  The applicant was accordingly re-sentenced.  He sought to challenge the caning part of his re-sentence on the grounds that it was a form of torture and violated Article 9 (protection of liberty) as being a form of punishment that was contrary to “law”; and that caning was discriminatory in its application to men and therefore violated Article 12 which protected equality of persons before the law.   The relevant challenge for present purposes was the argument that (having failed to convince the court on his arguments under Articles 9 and 12) “a prohibition against torture and inhuman punishment should be read into the Constitution because such practices violate “first principles of natural law””[10].  The applicant sought to rely on the case of Mohammad Faizal bin Sabtu v PP where the High Court referred to the principle of the separation of powers as part of the ‘basic structure’ of the Constitution:

[t]he Singapore Constitution is based on the Westminster model of constitutional government (‘the Westminster model’), under which the sovereign power of the State is distributed among three organs of state, viz, the Legislature, the Executive and the Judiciary…the sovereign power of Singapore is shared among the same trinity of constitutional organs, viz, the Legislature (comprising the President of Singapore and the Singapore parliament), the Executive (the Singapore government) and the Judiciary (the judges of the Supreme Court and the Subordinate Courts). The principle of separation of powers, whether conceived as a sharing or a division of sovereign power between these three organs of state, is therefore part of the basic structure of the Singapore Constitution… All Constitutions based on the Westminster model incorporate the principle of separation of powers as part of their constitutional structure in order to diffuse state power among different organs of state[11].

The Court of Appeal accepted in Yong Vui Kong that this case had introduced the idea that certain aspects of the Constitution are part of its’ ‘basic structure’ into the jurisprudence of Singapore.  To this the Court of Appeal added that the right to vote may also possibly be part of the basic structure of the Constitution[12] acknowledging their earlier decision on this issue in the case of Vellama d/o Marie Muthu v AG[13].  There the Court of Appeal had held that citizens had a right to a representative in Parliament in the Westminster model of government that is part of the inherent framework of the Constitution.  Using these examples, the Court of Appeal concluded in Yong Vui Kong that in order for something to be part of the “basic structure” of the Constitution “it must be something fundamental and essential to the political system that is established thereunder” (emphasis added) [14].

There are, therefore, two revelations thus far about the “basic structure” concept in Singapore.  First, for something to be considered the ‘basic structure’ of the Constitution it must be intrinsically linked to the political system of Singapore.  Therefore, the basic structure idea was unhelpful in the Yong Vui Kong case as the purported prohibition under torture was not so linked[15].  Secondly, the Court of Appeal in Yong Vui Kong held that any such aspect of the Constitution was part of the ‘basic structure’ of the Constitution rather than the ‘basic features doctrine’ (per Kesavannanda).  They confirmed that they were not going to make any decision on the effect of declaring something part of the basic structure of the Constitution[16].  Namely, whether it had the same impact as something considered to be part of the basic features doctrine in India whereby it is beyond the parliamentary amendment process applicable to the remaining features and provisions of the relevant constitutional document.

However, despite these limitations the further concretisation in Yong Vui Kong of the idea that the Constitution has a ‘basic structure’ is an important development in the constitutional jurisprudence of Singapore.  This is especially apparent when we evaluate the developing content of the various aspects of the Constitution that have already been identified as part of the basic structure.  This includes the idea of the separation of powers.[17]  The most recent discussion of this was in the case of Tan Seet Eng v Attorney-General[18].  Previously when the doctrine was elicited it was used as a tool of judicial restraint.  For example, in the case of Lee Hsien Loong v. Review Publishing Co Ltd[19], the High Court elaborated on the idea of non-justiciability (as part of its obiter and in rejecting the application of a media privilege against liability for defamation) and in doing so held that:

[i]n all cases of judicial review, the court should exercise restraint and take cognisance of the fact that our system of government operates within the framework of three co-equal branches; even though all exercise of power must be within constitutional and legal bounds, there are areas of prerogative power that the democratically elected Executive and Legislature are entrusted to take charge of and in this regard it is to the electorate and not the Judiciary that the Executive and Legislature are ultimately accountable.[20]

However, in the case of Tan Seet Eng a shift is apparent in the use of the idea of co-equality of the three branches as part of the separation of powers as being in support of judicial review rather than judicial deference.  There the Court of Appeal observed that:

the specific responsibility for pronouncing on the legality of government actions falls on the Judiciary. It is appropriate at this juncture to parse this. To hold that this is so is not to place the Judiciary in an exalted or superior position relative to the other branches of the government. On the contrary, the Judiciary is one of three co-equal branches of government. But though the branches of government are co-equal this is so only in the sense that none is superior to any other while all are subject to the Constitution. Beyond this, it is a fact that each branch of government has separate and distinct responsibilities. In broad terms, the Legislature has the power to make the laws of our land, and this power extends even to amending the foundation of our entire legal system and indeed, of our nation, the Constitution. The Executive has the power and the responsibility of governing the country within the framework of the laws established by the Legislature. And the Judiciary has the responsibility for the adjudication of controversies which carries with it the power to pronounce authoritatively and conclusively on the meaning of the Constitution and all other laws. It is the nature of this latter responsibility that results in the Judiciary being tasked with the role of pronouncing on the legality of government actions.[21]

This additional layer of explanation to the separation of power is an incremental extension of the explanation provided in earlier cases and is a welcome development of the jurisprudence on the topic.  It will be interesting to observe these developments in future cases as well as further elaborations on the content and scope of the basic structure of the Constitution in Singapore.

Swati Jhaveri teaches constitutional and administrative law at the Faculty of Law, National University of Singapore.

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

[2] AIR 1973 SC 1461

[3] Ibid at [316]

[4] Minerva Mills v. Union Of India and Ors AIR 1980 SC 1789: where the court held that limits on absolute power were a fundamental feature of the Constitution – therefore any constitutional amendment which sought to further enlarge the amendment powers of Parliament and limit judicial power to review was unconstitutional.

[5] Above n[1] at para 47 per FA Chua J (the Court of Appeal did not consider the issue on appeal).

[6] Ibid at para 34

[7] Above, n[4].

[8] [2015] 2 SLR 1158

[9] The applicant sought to challenge that sentence (and the subsequent refusal to grant him clemency) in numerous unsuccessful constitutional challenges: Yong Vui Kong v AG [2011] 2 SLR 1189, CA; Yong Vui Kong v PP [2010] 3 SLR 489; Yong Vui Kong v PP [2012] 2 SLR 872, CA.

[10] Above n[8] at para 38

[11] [2012] 4 SLR 947 at paras 11 and 12 (the court went on to hold that constitutional supremacy and the exclusiveness of judicial power were part of this idea of the separation of powers).  The court eventually concluded that none of these principles were breached by a legislative provision that sought to structure the sentencing ‘discretion’ of the judges in the context of certain drug trafficking offences.

[12] Relying on parliamentary debates where the Government acknowledged this to be the case – see Singapore Parliamentary Debates, Official Report (16May 2001) vol73 at col1726 (Wong Kan Seng, Minister for Home Affairs and Leader of the House)): “While the Constitution does not contain an expressed declaration of the right to vote, I have been advised by the Attorney General, even before today, that the right to vote at parliamentary and presidential elections is implied within the structure of our Constitution. We have a parliamentary form of government. The Constitution provides for regular general elections to make up Parliament and establishes representative democracy in Singapore. So the right to vote is fundamental to a representative democracy, which we are, and that is why we have the Parliamentary Elections Act to give effect to this right” (emphasis added).

[13] [2013] 4 SLR 1.

[14] Above n[8] at para 70 relying on Calvin Liang and Sarah Shi, “The Constitution of Our Constitution, A Vindication of the Basic Structure Doctrine” Singapore Law Gazette (August2014)12 at paras38 and 46: “The basic structure is intrinsic to, and arises from, the very nature of a constitution and not legislative or even judicial fiat. At its uncontentious minimum, a constitution sets out how political power is organised and divided between the organs of State in a particular society. In other words, the constitution is a power-defining and, therefore, power-limiting tool…the basic structure is a limited doctrine. It is arguable that fundamental rights are not a necessary part of the basic structure of a constitution. This is because fundamental rights relate to rights and liberties of citizens and do not define the limits to the powers of and checks on each organ of the State. What is not fundamental to a constitution cannot form part of its basic structure.

[15] The Court of Appeal was however prepared to recognise the presence of a limited prohibition against torture within Article 9 of the Constitution: liberty could not be deprived on the basis of evidence obtained through methods that constituted torture.

[16] Above n[8] at para 72.

[17] As was done in the case of Mohammad Faizal (above n [11]).

[18] [2015] SGCA 59.

[19] [2007] SGHC 24, [2007] 2 S.L.R.(R.) 453 at 490, para. 98 (which dealt with the question of the proper scope of the law of defamation and its relationship with freedom of expression)

[20] Ibid at para 98(d)

[21] Ibid at para 90

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2 comments

  1. James Wong

    Professor Swati encouraged me to leave my opinion on Yong Vui Kong, hence this post.

    Firstly, I must say that the court in Yong Vui Kong seemed to have conflated the basic structure ‘doctrine’ (if it can be called that) in Faizal with the basic features doctrine in Kesavananda. This is apparent from the court’s discussion of Kesavananda at [69] immediately after quoting a passage from Faizal, where they commented that the “basic structure” doctrine (in Faizal) is derived from Kesavananda. If I am wrong on this and the court is actually implying that they should be kept separate and distinct, I offer another interpretation below.

    On my reading, Yong Vui Kong seems to suggest that certain rights and concepts inherent within our political system form a part of the basic structure of the Constitution. Even if the Constitution is silent on those matters, they are readily implied from its basic structure – such as the right to vote and the doctrine of separation of powers (which explains Vellama and Faizal respectively).

    However, the ‘basic structure’ in Faizal and Vellama cannot be used to support the argument that there are certain aspects of the Constitution that cannot be amended, even if the amendment procedures were complied with. Those cases support the argument that certain rights can be implied, but they say nothing about whether such rights can be taken away. The latter falls strictly within the ambit of Kesavananda. Viewed in this light, the right to vote and indeed separation of powers can be amended or even removed if Parliament wished to do so, until and unless Kesavananda applies in Singapore. In my view, this is the key difference between ‘basic structure’ and ‘basic features’. But Prof Kevin Tan disagrees on this point (in his article ‘Into the Matrix’).

    James

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