Category: Uncategorized

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).  Continue reading

The Status of International Human Rights Conventions under Singapore Domestic Law

Jaclyn L Neo
Assistant Professor,
Faculty of Law, National University of Singapore

The High Court today struck out Wee Kim San Lawrence Bernard’s application for judicial review on the basis that the plaintiff had no locus standi. Mr. Wee had argued that the government’s failure to clarify the position that homosexual males are protected from discrimination under Article 12 of the Constitution of the Republic of Singapore is a violation of his constitutional rights. One of Mr. Wee’s arguments was that the Singapore government’s obligation to provide protections for homosexuals stems from its accession to both the UN Convention on the Rights of Persons with Disabilities (“UNCRPD”) and the Convention to Eliminate All Forms of Discrimination Against Women (“CEDAW”).

Leaving aside the substantive question of whether the provisions under UNCRPD or CEDAW cover and assist claims for protection against sexual orientation discrimination, the case raises interesting legal question of the status of ratified treaties/conventions under Singapore law. Singapore is a dualist state. This means that ratified treaties/conventions are not part of domestic law until specifically incorporated. This contrasts with monist states, where treaties are self-executing/automatically incorporated; no additional legislative act is required. Continue reading

High Stakes: GRC and the 2011 Singapore GE

Kevin Tan
Adjunct Professor of Law
National University of Singapore

I noted in my 1992 article, ‘The Constitutional Implications of the 1991 General Elections’ (1992) 13 Sing. L Rev 26 that the GRC system could cut both ways. While a strong personality (such as a respected minister) can waltz into Parliament with 4 or 5 silhouettes, the stakes can be quite high. This is why it would be unwise for the PAP to grow the GRC beyond a certain point. The election saw the revival of the 4-member GRC (albeit only in 2 constituencies – Moulmein-Kallang; and Holland-Bukit Timah), and a reduction of the number of 6-member GRCs. This indicates the PAP’s concern that should the scales tip against them, they could well end up losing 6 seats in one swoop. Continue reading