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Approaching the study of constitutional law
1. Big ideas, little rules and context
a. Necessary to know big ideas/concepts, the detailed legal rules, as well as the context in which they operate –
i.e., the Singaporean context.
b. Although the main focus of the course will be on legal aspects, it is equally important to know background
political philosophy as well as theories of justice.

2. Orthodoxy and Constructive Heresy

Orthodoxy Constructive Heresy
 Reflects the current state of the law  Normative desirability; focuses on what the law
 Descriptively accurate; i.e. describes the law as it is ought to be
 Emphasis on constructing a propositional argument
challenging the present state of the law

3. Reasoned Constitutional Argument vs bare political assertions/emotive rhetoric

a. Solid arguments, not fluffy descriptors

Thinking about Constitutionalism: Types of examinable questions

Conceptual Normative Empirical/Doctrinal

Concept vs Conception  Evaluation – How does one  What is the current state of
 Concept: An abstract idea, a evaluate if a particular idea is the law?
general notion E.g. “Concept good/bad, the merits/demerits  Which model applies? How
of secularism” of a particular viewpoint etc. does it work in practice? What
 Conception: The manner in  Focus on values is its impact?
which something is perceived  Prescriptive/propositional
or regarded E.g. “Conception
of democracy in X country vs Y

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Province of Constitutional & Administrative Law: Law, politics and public philosophy

Definition of Constitutional Law

 Concerned with conceptions of authority and legitimate authority, holding governments accountable for the misuse of
their power, and the remedies which are available for such misuse.
1. The branch of law that deals with the state or government and its relationships with individuals
2. A law affecting the public

Constitutional Law Administrative Law

 Principles and concepts  Judicial review: Nature and scope
 Institutions and processes  Delegated legislation/informal rules
 Rights, duties and public goods  Grounds of judicial review
 Standing and remedies

Public vs Private Law

Public Law Private Law

 Deals with the interests of the community at large,  Concerned with individual-individual interactions,
rather than the rights and interests of individuals rights and interests of the individual
 Key aspect is the tension which arises between the
interests of the individual and the community
 E.g. Criminal law, constitutional law  E.g. Criminal law, constitutional law E.g. Contract,
 Note that public law subjects may contain private law elements, and vice versa. For example, in contract law, although
the starting point is the intentions/will of the respective contracting parties, there are also public policy considerations
such as certainty/fairness which the court can take into consideration.

Intersections and Hybrids

 Does judicial review extend to contracts?
 Does the constitution apply between 2 private parties/entities with constitutional status?

Case Nappalli v ITE [1999] 2 SLR 569

Intersection between public (constitutional) law and private (contract) law
Facts  The appellant was a Jehovah’s witness and a training officer at the ITE.
 He was dismissed by the ITE for misconduct in refusing to take the National Pledge and sing the
National Anthem. He sued ITE for unfair dismissal.
 He argued that:
o His dismissal was in breach of an implied term of the employment contract
o ITE’s policy requiring participation in the pledge was unconstitutional.
 ITE argued that:
o The dismissal was fair as the appellant's refusal to participate in the pledge and anthem
ceremony made him unfit to be a good model for students.
Rule/Remarks  Illustrates interaction between public law (constitutional/administrative law) and contract law (ITE’s
policy, which was regarded as a valid contractual obligation binding on the student).
 Constitutional law aspect: The appellant’s interpretation of the pledge and anthem as a religious
ceremony was a distortion of secular fact into religious belief. It was not accepted as a religious
belief and was not entitled to protection under Arts 15 and 16 of the Constitution of the Republic of
o [28]: “Not every conviction or belief, including those held with what ironically may best be
described as religious fervour, qualifies as a religious belief... In other words, although the
pledge ceremony does not demand worship of the flag as a symbol, if a person held that
understanding, that perception was a philosophical choice.”
o [29]: “Indeed, to accept the appellant’s interpretation would rob the Constitution of any
operative effect. How can the same Constitution guarantee religious freedom if, by
asking citizens to pledge their allegiance to country, it is (as the appellant suggests)

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coercing participation in a religious ceremony? This excruciatingly absurd interpretation

cannot have been what was envisaged by the authors of the Constitution.”

 Contract law aspect: ITE’s policy was a valid contractual obligation binding on the appellant. His
conduct in refusing to follow the regulations was an act equal to failure to carry out contractual
o [33]: “There was no valid reason why the appellant should be excused from performing his
contractual obligations. His conduct in refusing to follow the regulations was an act equal
to failure to carry out contractual obligations.”

Case Cheang Peng Yew v Lim Chong Lin [2012] SGDC 86

Intsersection between public (constitutional) law and private (tort) law
Facts  The plaintiffs alleged that the defendant had started performing religious rituals twice to thrice a
week at his flat, including an immense amount of incense paper and joss sticks, chanting mantras
loudly and inviting several people for the purposes of the same.
 They sued the defendant for public nuisance.
Rule/Remarks  [16]: “It hardly needs to be said that the defendant is entitled to his constitutional right to practise
his faith. Article 15(1) of the Constitution reads:
o 15. —(1) Every person has the right to profess and practise his religion and to propagate
 [17]-[18]: “As should be clear by now, the tort of private nuisance can be committed even when one
is doing what one is entitled under the law to do... Whether or not a nuisance in fact, which has to
be borne with calmness, becomes actionable as the tort of private nuisance, is a difficult question
of balancing many circumstances. The difficult question of balance turns on whether in the
relevant circumstances of a case, the defendant has clearly crossed an indefinable line where, even
though what he does is his right under the law, he has done it to an extent or in such a way that he
has wrongfully interfered with his neighbour’s enjoyment of his property.”

Case Bertram v Mehta [2001] 4 SLR 454 (HC)

Tension between tort of harassment (which protects right to privacy) and the constitutional right to free
Facts  The first plaintiff (Malcomson Bertram) was the chief executive officer of the second plaintiff
(Zerity). The defendant (Mehta) was employed by the second plaintiff, but resigned shortly after.
 Mehta subsequently embarked on a course of conduct with such persistence that he made life
unbearable for the first plaintiff and his former colleagues. He (a) trespassed, and made a nuisance
of himself, at the first plaintiff’s residence and at the second plaintiff’s office; (b) made numerous
telephone calls, and sent numerous e-mails and SMS messages to the first plaintiff and the second
plaintiff’s staff; and (c) harassed the first plaintiff. These acts caused the plaintiffs much annoyance
and distress.
Rule/Remarks  Tort of harassment (NB: Did not exist in Singapore at that time) (private) – Under the
Miscellaneous Offences (Public Order and Nuisance) Act, “if a person uses words that are abusive,
insulting or threatening or behaves in that manner in any place and as a consequence causes
harassment, alarm or distress to another person, the former may have committed an offence
under the Act. However it would appear that similar words expressed by the perpetrator over the
mobile phone which causes harassment, alarm or distress to the victim would not be an offence
under this Act... In my opinion there is a need to address this lacuna in the law (at [54]).
 Constitutional right to privacy, free speech (public) – [56]: “There is of course the need to
balance the plaintiffs’ right to privacy against Mehta’s right to free speech. However the latter right
has always been subject to the existing law, eg defamation, sedition and, as I have demonstrated
above, the Miscellaneous Offences (Public Order and Nuisance) Act. Freedom of speech, as with
any other freedom, extends to where it begins to impinge on another person’s rights.”

New Frontiers
 Does constitutional law apply to cyberspace?
o “We are finding our way in this regime but my own philosophical approach is that it is no different from
physical space. When we make it a no man's land, everyone is fair game and then we get people lynched. The
worst instincts of people come out sometimes when they have anonymity and they feel they can say and do
everything without the controlling framework of social norms. I don't think the concept of freedom justifies
that... There is a line between bad manners and harmful conduct.” – Law Minister K. Shanmugam, Rule of Law
Symposium (2014)

Case PP v Benjamin Koh [2005] SGDC 272

Facts 

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Rule/Remarks 

Case PP v Amos Yee Pang [2015] SGDC 215

Facts 
Rule/Remarks 

The role of Public/Constitutional Law

Control Power Restrain Power
 Law embodies normative standards (political  Law tames power
philosophy) o Involves negative guidance – dictates what
o Involves positive guidance – dictates what cannot be done
can be done, and how  E.g. Regulates prosecutorial discretion: Mohd Ridzuan
o Deals with how the constitution directs the v AG [2015] SGCA 53
exercise of government power; e.g. does it  E.g. Regulates Thaipusam procession: Vijay Kumar v
require the state to have a balanced AG [2015] SGHC 244

Theories of State & Citizen

1. Human Association
a. Whenever people associate with one another, this will necessarily lead to a tension between order and
2. Social contract theories – Why is governance/some form of leadership required?
a. ‘Brutish’ state of nature (Thomas Hobbes, Leviathan): It was necessary to cede liberty to a strong ruler for
security. In the absence of a government (i.e. in a state of nature), humans would naturally tend towards a “war
of all against all” and the life of man would be “poor, nasty, brutish, and short”.
b. Retention of ‘natural rights’ (John Locke): In a natural state, all people were equal and independent, and
everyone had a natural right to defend his ‘life, health, liberty and possessions’. Like Hobbes, Locke assumed
that the sole right to defend in the state of nature was not enough, so people established a civil society to
resolve conflicts in a civil way with help from government in a state of society.
3. Man is a political animal;” Aristotle
a. Aristotle’s 3 forms of government: Monarchy, Oligarchy and Democracy
b. Other hybrids: Theocracy? Juristocracy?

Relationship between law and government

 Faced with a choice between a lame duck government as well as an unrestrained leviathan, it is clear that society does
not desire either of these alternatives.
 The issue, then, is how law controls the government by restraining it (i.e. in the case of an unrestrained leviathan) and by
facilitating it (in the case of a lame duck government)
 Madisonian realism (Western): The government must be restrained, treated with suspicion and given limited
o Edmund Burke: Men are qualified for freedom to the extent that they exercise self-restraint. If men are
incapable of self-restraint, they invite external restraint.
o Checks and counter-balances – James Madison: “But what is government itself, but the greatest of all
reflections on human nature?... you must first enable the government to control the governed; and in the next
place oblige it to control itself.”
 Basic idea: Nobody can be trusted to govern themselves; limits must be imposed. This derives from
the conception of basic human nature.
o David Hume: “It is just a political maxim that every man must be supposed a knave”

 Confucian idealism: The government comprises honorable and respectable men who should be trusted with
powers. Law should facilitate, rather than restrain government.
o The Confucian leader is the Junzi, who is a gentleman guided by Li (personal morality, proprietary) and Ren
o Instead of not being able to trust anyone, society is exhorted to differentiate between different groups of
people, some of which are more trustworthy than others (and therefore entitled to govern)
o Less emphasis on individual rights; power may be indivisible and can be held by one moral man.

Confucian Idealism Madisonian Realism

 Trust moral ruler  Distrust authority
 Indivisible power  Divided powers
 Rites (li)  Rights (litigation and lobbying)
 Remonstrance with ruler  Adversarial challenge
 Mandate of heaven  Mandate of people
 Law as state instrument  Law as a constraint

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Singapore context: More consistent with Confucian Idealism

 Goh Chok Tong, 1988, ISA debates: “The Singapore system, like the British, entrusts the Executive... with a range of
wide discretionary power... On this Constitutional framework, Singaporeans have superimposed the ideal political leader
as a Confucian gentleman, a Junzi, someone who is upright, morally beyond reproach, someone people can trust.”
 Presumption of legality which attaches to the acts of public officials: In the absence of positive evidence to the
contrary, the good faith and validity of public officials’ actions must be assumed (Faisal bin Tahar v PP).
o Suggests that there is a strong element of trust placed in public officials

Autonomy & Community

 The traditional framework:
The individual (liberalism) Autonomous self (independent from state)
The community (communitarianism) Situated self (community groups distinct from state)
The state (collectivism; statism) Subordinated self (submerged into collective, ‘totalising’,
organic state)
 However, Prof Thio recommends seeing things in degrees/as a continuum rather than in fixed categories (see below).

Criticism of the Western Liberal Democracy

 Shift from liberty to license
 Emphasis on rights has led to the development of “hyper-individualism”
 Decline in social life, community trust; emergence of biased media (e.g. New York Times). The online age also means
that there is a greater tendency for the public to only read news that it likes
 Erosion of personal and social responsibility
 Coarsening of public discourse and immaturity
 Excessive consumerism, materialism and commodification

The Constitution in Context

Singapore as a Paternal Democracy

 Spectrum: Paternalism ----------------------- Active political participation
o A paternal democracy is one that evolves, characterised by a shift down the spectrum from left to right

Paternal Democracy
 To be distinguished from ‘paternalism’:
o ‘Paternalism’: ‘Father knows best ideology/attitude; “nanny state” culture
o ‘Paternal’: Changing relationship between a parent and child, with need for adjustments as the child grows. In a
political sense, these adjustments primarily refer to the (i) political developments and (ii) demands by the
electorate for stronger political accountability/political participation which occur as a country develops
economically and the electorate grows more mature, wealthy and literate (Thio’s Treatise, p. 122).

 Clear “OB” markers/Mentality that only politicians should have the right to engage in political discourse: For
example, Catherine Lim published an article criticizing ministerial salaries, arguing that they reflected a great

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“effective divide” between the Government and the public. She then received a sharp response from the PM’s press
secretary, as well as statements that those wishing to comment on political matters should join a political party. In his
2004 speech to the Harvard Club, then deputy PM Lee Hsien Loong characterised Ms Lim’s actions as one which had
led to an “out-of-bounds marker [being] firmly planted.”
 Participants had to respect hierarchy in conducting debate: For example, political leaders had to be addressed
 Insulation of certain topics from frank debate as they were deemed too sensitive (e.g. race/religion issues).

 In Singapore, a more active and participative political culture has clearly emerged in Singapore and has accelerated in
the aftermath of the ‘watershed’ 2011 GE. Some concrete changes/examples:
o 2004 Harvard Club speech: Then Deputy PM Lee’s speech made clear the government’s intentions to
promote a more participatory culture in lieu of a Nanny state with a disengaged citizenry. In particular, he
clearly stated that the Government would “pull back from being all things to citizens”. For example,
disagreement with government policies would not necessarily imply rebellion; instead, the Government
would render “dispassionate and factual” responses to “constructive dissent”.
o 2011 GE: The PM acknowledged that the results of the GE reflected a rise in political consciousness and a
desire for more alternative voices in Parliament as well as a less authoritarian style of governance (Thio’s
Treatise, p. 122). In a speech delivered at the swearing-in Ceremony for the new Cabinet, he noted that
Singapore had “entered a new phase in its political development” with the entry of “more interest groups
and alternative views”. Nevertheless, the PM also stressed that Singaporeans had to remain united the big
issues and learn to recognise the fundamental realities facing Singapore, a small country in Southeast Asia.
o A new public ethos is being forged which reflects a consciousness on the part of government leaders that
they must be accountable and responsive to public sentiment. (Thio’s Treatise, p. 760)

 The Constitution reflects the conditions, realities, experience and history of Singapore:
Case/Article Vellama Marie Muthu v AG [2012] SGHC 155 at [48]
Rule/Remarks  Pillai J at [48]: “The Constitution sets out the foundational structure and arrangements of
Singapore’s public governance. As an independent nation of almost 50 years, the Constitution
reflects the conditions, realities, experience and history of Singapore. It contains fundamental
elements from our British colonial history, our self-government, our brief Malaysian experience,
and refinements introduced since independence in 1965. Whilst refinements have been
introduced to address new imperatives, the basic framework of our inherited colonial
constitution has not changed.”

 Red and green light theories:

o Prof Thio says that they are not mutually exclusive
Case/Article Jeyaratnam Kenneth Andrew v AG [2013] SGCA 56
Rule/Remarks  [50]: “In our view, the red/ green-light theory of administrative law not only provides a useful
classification of administrative law but also highlights the integral role that the political and
economic contexts of a jurisdiction play in determining which approach would be more suitable
for a given jurisdiction.”

 The green-light approach: In Chan Sek Keong, “Judicial Review – From Angst to Empathy” (2010)
22 SAcLJ 469, CJ Chan expressed plainly his opinion that judicial review is a “function of socio-
political attitude in the particular community” (at 479), and espoused a certain “green-light”
approach towards administrative law for Singapore’s context. On this view, public administration
is not principally about stopping bad administrative practices but encouraging good ones: “in
other words, seek good government through the political process and public avenues (e.g. public
discourse/debate) rather than redress bad government through the courts” (at 480).
o Benefits of a green-light approach, according to CJ Chan: “Under a green-light
approach, the courts can play their role in promoting the public interest by applying a
more discriminating test of locus standi to balance the rights of the individual and the
rights of the state in the implementation of sound policies in a lawful manner.”

 The red-light approach: In the words of Beatson, Matthews, and Elliott’s Administrative Law,
Text and Materials, (4thEd) at 2-3 “it is the courts which are centrally charged with securing good
administration, while the emphasis is on administrative law as a control upon government”.

 Singapore’s history, security, social circumstances, economic circumstances, and political-legal culture:
History  Former British colony, no political turnover post-independence
o In fact, PAP vote share increased by 10% in 2015 GE as compared to 2011 GE.
 How have colonial laws been treated? Have they been accepted/rejected?
Security  Public order and security is highly prioritized in Singapore

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 AG Rajah, Judicial Review – Politics, Policy & the Separation of Powers (2016): “It
would not be an overstatement to state that Singaporeans prize our unique sense of
security and consider freedom from crime a societal right.”
 Emphasis on shielding the country from internal and external threats such as
communism, terrorism and communalism.
Social  Singapore’s perennial sensitivities as a by-product if its multicultural, multiracial and
multi-religious population: Maintaining racial and religious harmony is a necessity and is
a topic which has consistently dominated public discourse.
 Need to protect against culture wars
o Exacerbated by the internet and social media, which have made it easier for
people to offend and take offence – one thoughtless comment can provoke a
self-righteous mob reaction and public lynching
 PM Lee, 66th Anniversary Inter-Religious Organisation (2015): “To maintain harmony
in our multi-racial and multi-religious society, the Government must take a watchful,
prudent and hands-on approach... Our limits may be stricter than some other societies,
but we make no apology for that.”
Economic  Singapore, as a developmentalist state with a managed economy, prides itself on its
economic efficiency
 Although Singapore is not a welfare state, it does have social safety nets e.g. Silver
Support scheme for 150,000 needy citizens
 Trade-off theory: Belief that political liberty and economic development are at odds
with one another. Political stability promotes economic growth, but political liberty can
lead to instability which would, conversely, hamper economic development. Based on
this view, liberal ideas are not preferred as they may promote political instability.
 Emergence of fiscal constitutionalism, which concerns how the constitution regulates
government spending -> office of the elected presidency, need to safeguard hard
earned reserves?
 Currently in flux
Political-legal culture  Dominant political ideology is communitarianism, which maintains that it is necessary
and legitimate for society to articulate what is good and what the good life means
(Amitai Etzioni)
o VS classical liberalism, under which each individual should be given the right
to formulate the good on his or her own
 Some examples:
o 1991 – Shared Values White Paper:
o 2001 – Government banned 100 porn sites as a “statement of our values”
o 2008 – PP v Kwong Kok Hing [2008]: “Our criminal law is... the public’s
expression of communitarian values to be promoted, defended and preserved.
These communitarian values include the preservation of morality, the
protection of the person, the preservation of public peace and order, respect
for institutions and preservation of the state’s wider interests.”
o 2013 – MDA ban on Ashley Madison: “It aggressively promotes and facilitates
extramarital affairs... It is against the public interest to allow Ashley Madison
to promote its website in flagrant disregard of our family values and public
 Change in leadership styles: Gradual shift from ‘soft authoritarianism’ to public
o “Be humble in victory. As MPs, always remember we are servants of the
people, not masters... Listen hard to voter concerns, help them to tackle
pressing needs, and convey their worries and aspirations to the Government.
Persuade them to support policies which are in their own long term benefit,
while helping the Government to formulate good policies and stay in close
touch with the people.” (Letter from PM LHL to PAP MPs on Rules of
Prudence, post-2015 GE)
o Previously: Public servants had to be treated and spoken to deferentially, even
in public debates (‘feudal’ mentality); cf former PM Goh’s leadership style
(“elder brother” approach VS LKY’s far more authoritative stance)
 Greater participation from the public: Engaging the public, promoting conversation
and consultation, active citizenship, civic virtue and civility
o PM Lee’s Harvard Club Speech

The Constitution – Its Character & Content: Power, Justice and Culture

Characteristics of the Constitution

 The Constitution is the site of confluence for the three elements of power, justice and culture (Thio’s Treatise).

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o While power and justice are more universalized, culture places the constitution in context – relates to that
particular country’s unique history and identity.
1. Foundational legal document
2. Fount of legitimacy
a. Every other law derives its legitimacy from it
3. Apex or higher law (positivisation of natural law)
4. Constitution as unifying “Civil Religion”
a. Plays the role that a religion would play in terms of identity, integration etc.
b. Contains rituals, symbols etc. (e.g. First Schedule Oaths)

Anatomy of the Constitution

 Preamble
 Institutions (structuring power)
 Processes
 Rights, duties, public goods
 Directive principles and state policies

Origins of the Constitution

 Deliberate models may be drafted by:
o Imperial Acts (You the people)
o Constituent Assembly (We the people)
o Legislative Act (We the people’s representatives)
o Imposed by foreign powers and IGOs (e.g. Cambodia, Timor-Leste, Japan)

Types of constitutions
 Federal/Unitary
 Big “C” and small “c”
o Big “C” Constitution: Refers to the written document itself
o Small “c” constitution: Includes unwritten constitutions (e.g. UK)
 Written/unwritten
o May be a ‘documentary’ text (by deliberation)
o Or may be unwritten – e.g. through custom, convention or case law (by organic, unconscious evolution)

Popular Sovereignty & ADI

 Singapore’s model has local, British and American influences:
o British import: Primarily a legal transplant of the British Westminster Model and the common law
o American-styled modifications (see slide 52 – ADI influences on Singapore constitution)
o Autochthony (native/indigenous influence): Constitutional democracy with Singapore characteristics

Functions of the Constitution

1. Organizational (Providing order and accountability)
a. Ordering institutions – differentiates ‘regular politics’ from ‘rules of the game’ (framework beyond simple
discretion of legislatire)
b. Instrumental functions: Realise policies (e.g. social welfare)
c. Secure liberty and security: Rights, judicial/non-judicial bodies
d. Manage differences: Dispute resolution and stability
i. E.g. Legislating morality: Should the state legislate morality vs which morality should it legislate?
2. Affective and Symbolic (Providing identity and legitimacy)
a. Identity: History, symbols, conscience, legal passions
b. Unifying function: Provides a collective identity. (If there is no shared past, there can at least be shared
aspirations and a shared future) – “constitutional patriotism)
3. Normative Vision (Collective Aspirations)
a. Affirms basic values and commitments
b. In the case of Singapore, the Singaporean identity is not explicit within the constitution itself. However, it may
be found in other constitutional documents – e.g. the Singapore pledge (e.g. “regardless of race, language and


Origin of Constitutionalism
 Before the Constitution was supreme, what or who might have been supreme? In the old days, the highest authority
typically belonged to an absolute monarch (e.g. King/Queen in a Westminster system).
 Thus, there was an inherent tension between the sovereign King and the law.
o Since the King was supreme, the King’s authority could only be questioned on the basis of natural law.
o This gave rise to the ancient clash between positivism and natural law.

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 This idea – that all political power ultimately lies in the people, and not the king – reflected a conceptual shift away from
absolutism/indivisible power (where the monarch carried God-ordained authority) to popular sovereignty, where
power vests not in the King, but in the people.
o Thus, the principle of limited government and constitutionalism was essentially a reaction to the political
ideology of absolutism. Prof Thio submits that every new political idea is essentially a response/reaction to an
old one.
 When one divides power (i.e. in a popular democracy), it is necessary to draw boundaries. Why is this so?
o Boundaries define freedoms
o This is the benefit of having a written constitution – it ensures that institutions/bodies only exercise whatever
powers they have explicitly been granted.
o One recurring question is this: Who is the final arbiter in defining these boundaries? Is it the Court?

Definition of Constitutionalism
 Constitutionalism refers to the idea that the constitution is “objectified” by articulated limits – i.e. it exists separately
from immediate power-holders who cannot direct the polity according to their subjective will. It is heavily premised on
the concepts of popular sovereignty and natural law (Perry Patterson).
 There are two key aspects of Constitutionalism:
o Restraint of power: The constitution effectively restrains governmental action and protect the
individual/minorities from the despotic exercise of political authority through the division of power (Friedrich).
(i.e. limits power)
 Restrains power through checks
o Guidance of power: The constitution also guides the use of powers (i.e. defines how power is channeled)
 Guides power by delineating the purposes for which power can be exercised.
 E.g. Hypothetical provision that “Singapore should be a green country”  This would necessarily
impose limits on Singapore’s economic, social policy etc.
 Cf Anti-constitutionalism, under which power is organized around the whim of one man or group

Can you have a Constitution without Constitutionalism?

 Yes, it is possible to have a constitution without constitutionalism (Thio’s Treatise, p. 37). Constitutionalism is a
normative concept – a set of attitudes and ideas about the origins of sovereign power. By contrast, the constitution
simply refers to the written document. The fact that a constitution factually exists in a particular society does not
necessarily mean that society has embraced constitutionalism.

Constitutionalism vs Totalitarianism
 How constitutional design may be marshalled to curb any of these expressions of totalitarianism remains a central focus
of constitutionalism.
o The use of law to temper power and submit will to reason – and thereby combat totalitarianism – is the central
object of constitutionalism.

Religious  Rule by the church

Political  Rule by the general will, usually defined by a small group of elites
totalitarianism  E.g. Communism, facism
Cultural  Rule by the cultural elite, which controls public debate by allowing only one ’cultural’
totalitarianism worldview which is seen not as a view but as a virtue itself
 Viewpoint hegemony: Intolerance of all competing theories of good human society (Kalb,
Tyranny of Liberalism)

Legal, political and relational constitutionalism

Legal constitutionalism Political constitutionalism Relational constitutionalism
 A fundamental law which generates  The principal form of accountability  Dialogical, promotes
judicially-enforceable limits on the in restraining public power is reconciliation and ‘harmony’
legislature. through political methods and between people
 Where legal constitutionalism is institutions e.g. elections,  Emphasis on social solidarity and
practiced, the primary checks are parliamentary question time and maintaining durable relationships
judicial in nature. Law is regarded as debates, ministerial responsibility,
superior to politics and judicial free press etc.
review serves as a counter-majoritan  The political constitutionalist model
check which institutionalizes limited favours the majority in democracies,
governance. where governments obtain
legitimacy by emerging as victors in
the electoral process and are only
able to govern if they obtain and
keep the support of the majority.

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 Legislature is the main check on

judicial power

Is there an ‘Asian’ or ‘Singaporean brand of constitutionalism?

 According to Pye and Ginsburg, the following are some prevalent characteristics in Asian constitutionalism:
o Acceptance of authority as the key to personal security (VS traditional Western enthusiasm for limiting
o Strong Confucian slant – emphasis on values like filial piety, respect for parental authority
o Law as a device of state power rather than an instrument of restraint (thinner conception of rule of law)
 While Asian countries embrace certain concepts prevalent in American constitutional sources (e.g. pursuit of economic
growth), they allegedly find fault with the American notions of absolute freedom of expression, property rights, and the
Separation of religion and the state (Beer). This suggests that there is indeed an ‘Asian’ brand of constitutionalism –
one that is more heavily premised on Confucian values and principles.
 In Singapore in particular, although it was noted that “a coherent Singaporean identity has not yet gelled”, the
government has taken deliberate steps to indoctrinate values like “society above self” and “consensus instead of
contention” (Shared Values White Paper, 1990; Lee Hsien Loong, 2005) which have heavily influenced Singapore’s
political culture. Our political landscape has in turn shaped our brand of constitutionalism, which is generally
characterised as non-liberal in nature.
o (Note, however, that in recent years, increasing political diversity and the emergence of more voices on the
political stage has generally given rise to a more politically participative culture.)

Constitutionalism & the Nature of the Polity: The ‘mixed’ Constitution

Liberal vs Non-liberal Constitutionalism

 Liberal constitutionalism pivots on liberal values – to the rights/liberty entitlements of individuals, the ideals of private
choice and free contract (Walker). There are two key characteristics:
o A strong emphasis on individualism, which prioritises individual autonomy and individual rights.
o The state is neutral and individuals are free to pursue their own conceptions of the good life.
o According to Prof Thio, the state also usually purports to be secular.
 By contrast, non-liberal constitutionalism is constitutionalism conceived independent of these liberal values. There is a
very broad range of societies which subscribe to non-liberal constitutionalism – e.g. meritocratic and theocratic states.
Typically, society views the individual not as the source of value but as a participant in a given system of meaning to
which allegiance is naturally owed (Walker). The following characteristics are usually evident:
o Community interests are prioritized above individual interests
o The state expressly promotes a vision of the public good

Liberal Constitutionalism Non-liberal Constitutionalism

Self and society Two main pillars**:  Prioritises community interests and
 Focus on individualism, which prioritises identifies freedoms, duties and
individual autonomy and individual responsibilities as the social matrix for the
rights. outworking of liberties.
 State is neutral and individuals are free to o The individual is not viewed
pursue their own conceptions of the alone, but as a participant in a
good life – there is no shared conception community.
of the good (element of choice itself  State expressly promotes a vision of the
matters) public good (content of choice matters)
State  “Neutral” state (but note that they can  The state promotes the particular vision of
never be truly neutral) communal life and the “good”, drawing
 Forms choice-oriented, autonomist, from religious, ethnic identity or moral
experimental individuals. solidarity
Authority  Secular, may be hostile or benevolent  Mixed: Secular, theocratic traits
towards religion
Role of courts  Co-equal or primary role in enforcing  Co-equal or subordinate role in enforcing
constitution constitution; reliance on democratic
processes and citizen participation
Method of  Legal methods  Legal and political; methods
constraint  Rights  Rights and structures
Danger  Absolutist principles (imposes  Absolutist ruler and rules
substantive values predicated on
individual autonomy)

Walker: ‘Mixed Constitutions’ as a moderating strategy

 Blending communal values and counter-balancing institutions with individual rights helps to mitigate the absolutist
quality of both liberal and non-liberal models of constitutionalism

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Is liberal constitutionalism merely a myth?

 Prof Thio points out that even in liberal states, governments are inherently judgmental – they promote their own
versions of the ‘good’, albeit in a covert rather than an overt manner.
o For example, even liberal states have tax law. Once a state implements a system of distributive justice
(which is in itself a substantive philosophy), the state is effectively making a choice for its citizens can no
longer purport to be neutral.
 Therefore, neutral states hardly exist in real life. There are no states which ‘purely’ subscribe to liberal
constitutionalism – everything is a matter of degree. The real distinction lies between governments which overtly
promote a vision of the good, and governments which covertly do the same.
 E.g. Singapore is a clear example of a state which espouses non-liberal constitutionalism.
o Our government has repeatedly repeated that Singapore is built on meritocracy and multiculturalism – it
has clearly articulated its view of what it means to be Singaporean.
o Other “Singaporean” values deliberately inculcated by the government include: Society above self,
consensus instead of conflict/contention, racial and religious harmony (see Shared Values White Paper).

Sources of Constitutional Law

Constitutional text  The Constitutional text is a legal instrument with supreme legal force, which may
only be amended by special procedure.
 However, although the virtue of a text is its relative clarity as well as its ability to
delineate the powers and functions of institutions and processes with specify, it is by
no means exhaustive nor determinative. It is necessary to have regard to other
constitutional sources.
 NB: Since the constitution does not exhaustively stipulate all government’s powers
and functions, there are certain constitutional principles which may be implied from
the structure and history of the constitution. Moses Hinds v The Queen – Many
Westminster-based constitutions have much “left to necessary implication”
Legislation  Statutes which have constitutional significance, in giving effect to constitutional
provisions mandating the establishment of certain laws or institutions, or which curtail
fundamental rights
 E.g. Internal Security Act, Presidential Elections Act, Maintenance of Religious
Harmony Act
Case law  Judicial decisions may provide principles which shape the manner in which the
Constitution is interpreted and understood.
 For example, Ong Ah Chuan is authority for the proposition that the Constitution
should be interpreted “as sui generis, calling for principles of its own, suitable to
its character”, and that it should be interpreted broadly in a generous manner
Constitutional  Constitutional conventions are maxims of political morality observed and derived
conventions from long practice, which have played an important role in the working of the
constitution in the Commonwealth.
 They are generally considered distinct from the law as they are not binding or
justiciable. They do not exist in a legal vacuum but operate within an existing legal
framework, providing “the flesh which clothes the dry bones of the law; they make the
legal constitution work; they keep in touch with the growth of ideas” (The Law and the
Constutution, Sir Ivor Jennings).
 Constitutional conventions may be:
o Codified: E.g. Art 21(1) – President acts on the advice of the Cabinet
o Developing: E.g. The Government has made it a practice “to always seek
the President’s views whenever it intends to move Constitutional
amendments that affect the relevant provisions” (Jayakumar, 82 SPR, 12
Feb 2007)
 Singapore has adopted many of UK’s constitutional conventions and positivised these
unwritten laws by turning them into written laws. (Benefits of having a written
constitution – Can use it to define and outline whichever laws and customs you want
to make legally binding.)
Judicial declarations Judicial declarations of unwritten:
 Principles: e.g. “law” is defined as “fundamental rules of natural justice” (Ong Ah
Chuan v PP (1981), Yong Vui Kong v AG (2011))
 Duties: e.g. Art 49 does not stipulate when the PM must call by-elections to fill
vacancies in SMCs. In Vellama v AG, it was held that although the PM has a discretion
as to when to call the by-election (i.e. the court cannot stipulate a specific period), a
duty to call a by-election within a reasonable time could be implied into the article.

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 Rights: (See Thio, ‘Westminster Constitutions and Implied Fundamental Rights’

(2009) SJLS 406‐433)
o Right to vote:
 Yong Vui Kong v PP (2015) at [69]: “The basic structure doctrine postulates
that there are certain fundamental features of a constitution that cannot be
amended by Parliament... An example of a feature that is part of the basic
structure of the Constitution is the separation of powers... Another example
is possibly the right to vote. This right cannot be found in the Constitution...
[but] in relation to the right to vote, the Government acknowledged in 2001
that this is part of the basic structure of the Constitution.”
 2009 Budget Debate (Law) – Tan & Thio at 327-330: K Shanmugam (Minister
for Law): “In a Representative Democracy like Singapore, voting is... a right,
not a privilege... The right to vote is an implied right, arising from the various
provisions in the Constitution including Articles 65 and 66 which provide for
a general election within 3 months after every dissolution of Parliament.”
o Prohibition against torture:
 Yong Vui Kong v PP [2010] at [75]: “It also bears mention that the
Government has expressed the view that torture is wrong... This explicit
recognition by the Government that torture is wrong in the local context
stands in sharp contrast to the absence of any statement on its part (in the
context of our national policy on combating drug trafficking in Singapore)
that the [mandatory death penalty] is an inhuman punishment. In addition,
torture, in so far as it causes harm to the body with criminal intent, is already
criminalised under ch XVI of the Singapore Penal Code, which sets out the
types of offences affecting the human body.”
 Yong Vui Kong v PP [2015] at [58]: “We agree that there is a common law
prohibition against torture, and that this prohibition has been imported into
domestic law pursuant to (what is now) Art 162 of the Constitution.”
“Soft” constitutional law  These are consciously-articulated norms which must be written in non-binding
 In addition, they must typically be accessible to those actors which they seek to
regulate, and must have some sort of influence or legal effect in shaping the
behaviour and expectations of constitutional actors
 They are prospective/declaratory in nature (cf constitutional conventions, which are
derived from past practices) and are designed for future application.
 Soft constitutional law may be derived from the following sources:
o Government White Papers
 Inter‐Branch: e.g. Principles for determining and safeguarding accumulated
reserves (1999)
 Directed at Citizens: e.g. Shared Values white paper (1990)
o Declarations e.g. Declaration on Religious Harmony (2004)
o Guidelines e.g. Tripartite Guidelines on Fair Employment: Tafep website
Domestic and  Dualistic approach to international law in Singapore (as opposed to monistic) –
International law international law must be “definitively declared to be part of the domestic context by
a domestic court” before it can be applied in Singapore (ABU Comptroller of Income
Tax [2015] SGCA 4 at [47]).

 NB: Singapore’s constitution is primarily a Westminster-based constitution, owing to Singapore’s historical development
and colonial heritage.
 Legal transplantation: Singapore’s constitution is “based essentially on the Westminster model and adopts and codifies
most, if not all, of the laws, customs, conventions and practices of the British constitutional and parliamentary system”
(JB Jeyaretnam v AG [1987]).
 Features of a Westminster-based constitution:
o Freely-elected legislative chamber, secret ballot.
o Electors have a real choice between 2+ political parties
o Concentrated political power in a collective and responsible cabinet, headed by PM commanding the
confidence of the majority in the (predominantly) elected chamber
o Ministerial accountability to Parliament
o A recognised opposition (akin to Her Majesty’s Loyal Opposition); acting as an ‘executive in waiting’;
o Non‐partisan constitutional bureaucracy + expert civil service
o Parliamentary sovereignty with the unity of the executive and the legislature (‘whip’ and party system)
o A set of constitutional conventions

Constitutional Principles/Principles of Limited Governments

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 May be interpreted as part of ‘higher law’ binding both governor and governed
 Multiple competing conceptions of these constitutional principles
 Constitutional principles interact with one another

 Two types of secularism: Anti-theocratic and anti-religious. Singapore’s approach is anti-theocratic, nut not anti-
o Singapore’s secularism has been described as “secularism with a soul”/”accommodative secularism”, that is, “a
system that respects the role that can be played by religious life in Singapore”. (Singapore Parliamentary
Debates, Official Report (28 Feb 200), “Debate on Annual Budget Statement)
o Religion is recognised and valued as a constructive social force which enriches the common good and
individual spirituality.
o “Religion is a good thing provided we are able to bridge the differences between our different faiths... [and]
make an extra effort to develop that trust and to work together which we have been doing.” (PM Lee Hsien
Loong, Time Interview, 23 July 2015)
 Jurisdictional theory: Limited government (separation vs conflation of the sacred/temporal); some things are
necessarily outside the government’s jurisdiction
o E.g. Art 15(3)(a): “Every religious group has the right... to manage its own religious affairs”
 Source of political authority in Singapore: Secular democracy
o “The government must claim ultimate political authority from the Constitution, and not from any divine or
ecclesiastical sanction” (MRHA White Paper, para 5)
o “In Singapore, the safeguards for political rights and democractic values must be secular, not religious
institutions. If... the government of the day acts contrary to the interests of the people.... It is the duty of the
opposition political parties and the electorate, not of any religious group, to overthrow a government which
has lost the mandate of the people...” (MRHA White Paper, para 21).
 No specifically established religion (cf Malaysia, Saudi Arabia etc.)
o The government does not favour any particular religion, but instead seeks to treat all religions in an even-
handed fashion
o However - Colin Chan v PP (1993) 3 SLR(R) 209 at [53]: “Significantly, the Singapore Constitution does not
prohibit the ‘establishment’ of any religion.”
 Note indigeneity clause which protects the “special position” of the Malays – Art 152(2)

Case Nappalli v ITE [1999] 2 SLR 569

Singapore’s secular approach
Facts  The appellant was a Jehovah’s witness and a training officer at the ITE.
 He was dismissed by the ITE for misconduct in refusing to take the National Pledge and sing the
National Anthem. He sued ITE for unfair dismissal.
 He argued that:
o His dismissal was in breach of an implied term of the employment contract
o ITE’s policy requiring participation in the pledge was unconstitutional.
 ITE argued that:
o The dismissal was fair as the appellant's refusal to participate in the pledge and anthem
ceremony made him unfit to be a good model for students.
Rule/Remarks  The appellant’s interpretation of the pledge and anthem as a religious ceremony was a distortion of
secular fact into religious belief. It was not accepted as a religious belief and was not entitled to
protection under Arts 15 and 16 of the Constitution of the Republic of Singapore.
o [28]: “Not every conviction or belief, including those held with what ironically may best be
described as religious fervour, qualifies as a religious belief... In other words, although the
pledge ceremony does not demand worship of the flag as a symbol, if a person held that
understanding, that perception was a philosophical choice.”
o [29]: “Indeed, to accept the appellant’s interpretation would rob the Constitution of any
operative effect. How can the same Constitution guarantee religious freedom if, by
asking citizens to pledge their allegiance to country, it is (as the appellant suggests)
coercing participation in a religious ceremony? This excruciatingly absurd interpretation
cannot have been what was envisaged by the authors of the Constitution.”

Legal Pluralism & Religious Laws

 Two types of legal/religious diversity in Singapore:
Diversity as inclusion Diversity as competition with non-state law

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 Shared space for manifesting group-based identities –  Demand to be out of the state’s regulatory
ability to manifest group-based identities in common reach, establishment of “islands of jurisdiction”
spaces/public  “Sphere sovereignty”
 Autonomy
 Describes Singapore’s approach? (*TO CHECK*)
o E.g. Art 152-153: Duty to care for ‘racial and
religious minorities’
o AMLA, religious courts, Islamic Religious Council,
Muslim Affairs Minister
o Halal certification (MUIS, s 88A AMLA) –
demonstrates that State is willing to take a more
proactive approach towards religion? Cf Philippines,
where halal certification is said to contravene the
constitutional principle of ‘separation of Church &

 NB: The fact that even religious laws derive their legitimacy from secular laws (i.e. AMLA) is testament to secularism in

Sovereignty, Democracy
 Two aspects of sovereignty: External and internal sovereignty

External sovereignty Internal sovereignty

 Refers to independent statehood and self-determination  Refers to the sovereignty of the people – Popular
 “Independence in regard to a portion of the globe” which sovereignty, which means that “the authority of the
imports the right to exercise state functions to the exclusion government emanates from the people (Vellama v AG
of any other State (Thio’s Treatise, p. 195) [2013]).
o Art 3: “Singapore shall be a sovereign republic to be  The fear of democracy is tyranny of the majority.
known as the Republic of Singapore.” – PP v Taw Cheng Accordingly, constitutional democracy is different
Kong [1998] 2 SLR 410 at [20] from ordinary democracy in that it aims to protect
o Art 6: No surrender of sovereignty of Singapore as an both majority and minority rights at the same time.
independent nation by merger/ incorporation into
another state except by referendum… Democracy – both at and between elections
o As framework: Majority rules (aggregative approach)
Characteristics o As process: Culture of reasons, viewpoint
 Territorial sovereignty diversity/deliberative approach, free speech and press
 Non-interference in the domestic/internal affairs of the state etc.
o E.g. Malaysians’ protest at Merlion Park, May 2013 o Democratic values: Representation, participation,
o E.g. Foreign MNCs should not intervene in domestic equality, legitimacy, political pluralism, minority
affairs by supporting divisive causes, May 2016 – Chan protection
Chun Seng “Foreign companies... should not venture into
public advocacy for causes that sow discord amongst See Vellama v AG (below).
o Primacy of local laws: Yong Vui Kong v PP (2015) SGCA –
Even preemptory norms/jus cogens does not
automatically acquire the status of a constitutional norm
when transposed into domestic law. Allowing a
peremptory norm to override a local statute “would be
untenable as it would mean that the content of our
Constitution could be dictated by the views of other
states, regardless of what the people of Singapore,
expressing their will through elected representatives,
o Political context: “Foreigners do not have the right to
take part directly in the politics of Singapore...
Singaporeans alone have the right to determine what
kind of society they want Singapore to be.” (DPM Wong
Kan Seng, MHA Budget debates); “only Singaporeans and
permanent residents of Singapore are allowed to
participate in demonstrations held by the Speaker’s
Corner” (Police reminder, 11 May 2013)
o Laws which apply solely to Singaporeans: E.g. Art 14(1)
(Constitutional right to free speech) has no relevance to

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non-citizens, who only have the right to free speech at

common law (Review Publishing Co Ltd v Lee Hsien Loong)

Case Vellama v AG [2013] SGCA 39

Facts  The appellant (a resident voter of Hougang SMC) filed an originating summons for leave to
bring judicial review proceedings for a mandatory order to compel the Prime Minister to
advise the President to issue a writ of election mandating by-elections in Hougang SMC and
declarations that the Prime Minister does not have unfettered discretion in deciding whether
to, and when, to announce by-elections in Hougang SMC.
Holding Appeal dismissed.
Rule/Remarks On Singapore’s style of governance/democracy
 [79]: “[I]t is vital to remind ourselves that the form of government of the Republic of
Singapore as reflected in the Constitution is the Westminster model of government, with the
party commanding the majority support in Parliament having the mandate to form the
government. The authority of the government emanates from the people. Each Member
represents the people of the constituency who voted him into Parliament. The voters of a
constituency are entitled to have a Member representing and speaking for them in
Parliament. The Member is not just the mouthpiece but the voice of the people of the
 [80]: “... our Constitution emphasises the political party rather than the individual MPs by
providing that should an MP cease to be a member of the party under which banner he was
elected, he shall on that account also cease to be an MP.”
 [82]: “Having regard to the role of an MP in the Westminster form of government and on a
plain reading of Art 49, it seems clear to us that the Constitution places a duty upon the
Prime Minister to call a by-election (unless he intends to dissolve Parliament in the near
future) to fill casual vacancies of elected MPs which may arise from time to time.”

Federalism, Devolution, Subsidiarity

 Involves the division of power, leading to the formation of local governments or local governance characterised by a
localized decision-making process.
 Singapore is too small to have local governments, but we have local governance.
o E.g. Central management by HDB of public housing estates, transfer of power to MPs/grassroots leaders who
are given “greater power and responsibility to manage their own affairs and to participate in their estate’s
development” (AG v AHPTEC (2015)).
o Town Councils Act (1989): Two philosophical objectives, “the first being the increased participation of
Singaporeans in building an even better Singapore, and the second being the need to provide stabilisers to our
democratic political system.” (AG v AHPTEC (2015)).

Case AG v Aljunied‐Hougang‐Punggol East Town Council [2015] SGHC 137

Facts  The Df, AHPETC, was a body corporate under the Town Councils Act
 Pursuant to the TCA, AHPETC submitted its audited financial statements and auditor’s
observations report for financial year 2011/2012 and 2012/2013 to the Minister for National
 As these two reports raised serious questions about the reliability and accuracy of AHPETC’s
financial and accounting systems, the Auditor-General was appointed by the Deputy Prime
Minister and the Minister of Finance to conduct an audit on AHPETC’s FY 2012/2013 financial
accounts, records and books.
 The AGO released its report stating that it had found several lapses in governance and
compliance with the TCA and the Town Councils Financial Rules (TCFR) by AHPETC.
 The MND then filed the OS to appoint independent auditors to (inter alia) demand, collect, get in
and receive all Town Council moneys improperly paid out and/or take appropriate action in
respect of breaches of duties by AHPETC’s agents.
Rule/Remarks  [44]: “The then First Deputy Prime Minister and Minister for Defence Mr Goh Chok Tong stated
that the Town Councils Bill was meant to contribute to the attainment of two philosophical
objectives, the first being the increased participation of Singaporeans in building an even better
Singapore, and the second being the need to provide stabilisers to our democratic political

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 [45]: “To achieve these twin objectives, the Bill sought, first, to transfer some power from the
HDB to the MPs and grassroots leaders by giving the latter, and the residents, greater power and
responsibility to manage their own affairs and to participate in their estate’s development.”
 [46]: “Secondly, it was perceived at that time that MPs had no direct responsibility for and
accountability to their constituencies. The Bill sought to increase the authority and responsibility
of MPs, thereby encouraging voters to vote more carefully and sincerely to choose honest and
effective MPs.”

Town Councils Community Development Councils

 Independent of, but linked with GRC scheme  Tasked with promoting community governance,
 Political on nature (s 9 TCA: TC chair must be an elected community bonding and social cohesion e.g. by providing
MP) social and employment assistance, job-seeking and skills
 The TC scheme was presented as a major contribution to upgrade, recession relief packages, environmental
our system of parliamentary democracy and another blueprints, legal awareness, eldercare etc.
significant step in evolving a political system that will  Come under the People’s Association umbrella.
work for Singapore in promoting “participatory Appointments are made by the PA Board, on which sits
democracy” and nurturing “relevant democratic high-ranking ministers
traditions”. (Thio’s Treatise, p. 337)  Criticism:
 Criticism: o Politicised nature: The CDC is politicized through its
o Overly-politicised nature of TCs: E.g. Exclusion of linkage with TCs. The PM appoints CDC chairpersons
opposition-run TCs from a 2000 conference for PAP and mayors. Thus, through CDCs, the PAP is able to
TCs to learn “trade secrets” in estate management; maintain an active presence in opposition-held wards,
opposition MPs do not have access to funds to make allowing them to cultivate ties with residents, raise
estate improvements under the Community money for community development schemes etc.
Improvement Projects Committee (CIPC) while PAP thereby enhancing the prospects of later electoral
grassroots leaders do etc. success.
o Lack of autonomy: In actuality, the TC does not have
a free hand as the Ministry of National Development
(MND) remains the supervisory authority who can
appoint a managing agent to manage the town where
the TC does not serve residents properly/fails to
remove imminent threats to the health and safety of

Separation of powers
 Separation of powers on 3 levels (Prof MJC Vile)
o Institution: To maintain political liberty, divide government into three branches: legislature, the executive and
the judiciary
o Function: Confine each government branch to the exercise of its own function; prevent encroachment into the
functions of the other branches.
o Personnel: To keep separate and distinct the persons composing the 3 agencies of government; no individual
to be allowed to be at the same time a member of more than one branch, so that no single group of people will
be able to control the machinery of the State.

 Purpose of separation of powers:

o To prevent tyranny and protect liberty
o Democracy (governments are elected, while the judiciary is not elected)
o Efficient government, professional competence

Case Mohd Faisal v PP [2012] SGHC 163

Rule/Remarks  [12]: “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.”

 Characteristics
o Non-justiciability and deference
 Although courts are entrusted with judicial review powers, they will not touch political questions
which they are not competent to deal with
 Lee Hsien Loong v Review Publishing Co [2007]: There are “clearly provinces of executive decision-
making that are, and should be, immune from judicial review.” (at [95]).
Case Tan Seet Eng (2015) SGCA 59
Rule/Remarks  [91]: “The question of the appropriate measure of deference, respect, restraint, latitude or
discretionary area of judgment... which the courts should grant the primary decision-maker
under this head of review is one of the most complex in all of public law and goes to the heart of

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the principle of the separation of powers... there is often a fine line between assessment of the
merits of the decision (evaluation of fact and policy) and the assessment of whether the
principles of “just administrative action” have been met. The former questions are normally
matters for the primary decision-maker, but the latter are within the appropriate capacity of the
courts to decide.”

o Functional differentiation
 Are mandatory sentences contrary to the separation of powers in that they effectively take away
judicial powers?
 E.g. Minimum punishments: Mohd Faisal v PP
 E.g. Death penalty: Nguyen Tuong Van v PP

o Polycentricity
 Certain decisions involve polycentric considerations which courts are simply not equipped to deal
with. Examples of such matters:
 National security (Tan Seet Eng)
 Allocative decisions (Chiu Teng)
 Issues of social morality (Lim Meng Suan v AG)
Case Tan Seet Eng (2015) SGCA 59
Rule/Remarks  [93]: “[C]ourts and judges are not the best-equipped to scrutinise decisions which are laden with
issues of policy or security or which call for polycentric political considerations. Courts and
judges are concerned rather with justice and legality in the particular cases that come before
 [95]: “On matters concerning national security, our courts have traditionally accorded deference
to the Executive’s determination. Practically, this has meant that the courts have undertaken a
less intense standard of review.”

Case Chiu Teng [2013] SGHC 262

Rule/Remarks  [65]: “A... limitation on the court’s institutional capacity occurs when a legal challenge is made
on substantive grounds to a matter which is ‘polycentric’ — where the decision-taker has
broad discretion involving policy and public interest considerations.
Most ‘allocative decisions’ — decisions involving the distribution of limited resources — fall into
the category of polycentric decisions. If the court alters such a decision, the judicial intervention
will set up a chain reaction, requiring a rearrangement of other decisions with which the original
has interacting points of influence.”
 [111]: [Public interest should override expectation so judiciary can]…”fulfill its constitutional role
without arrogating to itself the unconstitutional position of being a super‐legislature or a super‐

Case Lim Meng Suang v AG [2013] SGHC 73

Here, the court presented a highly nuanced view of the court’s capacity for judicial review – the judge
candidly admitted that courts do make law, but only in interpreting statutes and extending common law
Rule/Remarks  [108]: “A calibrated approach to judicial review should be adopted whereby the intensity of
judicial review in a particular case turned on factual content and common sense “which takes
into account the simple fact that there are certain questions in respect of which there can be no
expectation that an unelected judiciary will play any role”... the doctrine of justiciability rests
on the doctrine of separation of powers, which in turn, has been described as a fundamental
doctrine of the Constitution.”
 [110]: “[W]here issues of social morality are concerned, the calibrated approach mentioned at
[108] above should be tilted in favour of persons who are elected and entrusted with the task of
representing the people’s interests and will.”
 [139]: “In our legal system, that decision is left to Parliament... our courts can but call on
Parliament to consider changing the law. That said, I also accept that there are times, albeit
very rare, when a court is able to say that a certain principle of law is outmoded and should no
longer be enforced.

 [144]: “As stated above, the basis underlying s 377A’s existence is, in the final analysis, an issue
of morality and societal values. The views ventilated in Parliament during the October 2007
Parliamentary Debates and at the hearing of this case are without a doubt controversial and
disparate among various segments of our society. What is clear, however, is that Parliament has
decided that s 377A should be retained. That decision is not one which is undeniably wrong. Our
courts cannot substitute their own views for that of Parliament.”

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o Presumption of constitutionality
 Where there is doubt regarding the normative desirability of a certain decision and there are many
contested views, the court is typically hesitant to make a decision and will typically only make
suggestions at best.
Case Lim Meng Suang v AG [2013] SGHC 73
Rule/Remarks  [142]: “To my mind, defining moral issues need time to evolve and are best left to the Legislature
to resolve. Even the seminal case of Roe v Wade 410 US 113 (1973) has been doubted... [In that
case,] heavy-handed judicial intervention was difficult to justify and appears to have provoked,
not resolved, conflict.”

Case Lim Meng Suang v AG [2014] SGCA 53

Rule/Remarks  [77]: “[T]he courts are separate and distinct from the Legislature. More specifically, whilst the
courts do “make” law, this is only permissible in the context of the interpretation of statutes
and the development of the principles of common law and equity. It is impermissible for the
courts to arrogate to themselves legislative powers – to become, in other words, “mini-
legislatures”. This must necessarily be the case because the courts have no mandate whatsoever
to create or amend laws in a manner which permits recourse to extra-legal policy factors as well
as considerations. The jurisdiction as well as the power to do so lie exclusively within the sphere
of the Legislature. Indeed, the power of the Legislature to enact and amend laws is governed by
quite a different procedure. Hence, the duty of a court is to interpret statutes enacted by the
Legislature; it cannot amend or modify statutes based on its own personal preference or fiat as
that would be an obvious (and unacceptable) usurpation of the legislative function.”
 [173]: “At this particular juncture, the vitally important distinction between the judicial function
on the one hand and the legislative function on the other must be emphasised yet again. Put
simply, the court cannot and must not attempt to (still less actually) operate as a “mini-
legislature” – lest the vital role of the court as an independent and neutral institution deciding
objectively, on the basis of objective legal rules and principles, the rights which parties have in a
particular situation (among other issues) be reduced to naught.”

Rule of Law
 A brief history: From Rex Lex to Lex Rex
o Henri Le Bracton, De Legibus et Consultulinibus Angliae: The King himself ought not to be subject to man but to
God and the Law, for the law makes the King.
o Samuel Rutherford, Lex Rex (1644): Demolished the doctrine of the “divine right of kings” (Rex Lex). Under Lex
Rex, rulers are subject to rules and are restrained by objective standards.

 Definition: What does ‘the rule of law’ mean?

o Generally, the rule of law itself is perceived as a universal human good. It is clear that it bears legitimating force
and is an accepted standard for evaluating the quality of government (Thio’s Treatise, p. 165).
o However, note that as a facet of good governance, the rule of law is necessary but insufficient as it is not a
panacea to all social ills; it also carries the risk in certain versions of being invoked to support elitist rule by a
tribe of judges and lawyers.
o There are many dueling paradigms and competing conceptions of the rule of law. It is by no means an absolute
value. As DPM Prof S Kayakumar conceded in his keynote address at the IBA Rule of Law Symposium, “the
Rule of Law concept... embodies a number of important interrelated ideas”. Nevertheless, he conceded that
there is a “core set of fundamental principles undergirding the rule of law that should exist in every society.”
o Prof Thio submits that when defining the rule of law, we should begin with the “core” principles of the Rule of
Law before moving on to the contested aspects.

o Controversy #1: “Thick” (substantive) vs “Thin” (formal) conceptions of the rule of law

Increasing “thickness”

Lawlessness Rule by law Rule of law Rule of good law

Also known as “formal” rule of Thick conception
law/Thin conception

 Arbitrary use of power  Arbitrary use of  Strict adherence to formal  Similar to formal rule of law, but goes
 No formal power, but there is rules/procedure further
procedures/ rules are nevertheless strict  Law is capable of restraining  The rule of law is seen as important
followed adherence to and guiding its subjects, because it promotes a substantive vision
procedure including the state, because it is of the good. However, since everyone’s
supreme (Raz) conception of the ‘good’ differs, it is an

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(because it is  However, the rule of law is not inherently subjective/contested concept:

convenient) intrinsically tied to substantive There is no theory of good law which is
 The law is used as rights such as human rights, uncontroversial.
an instrument by democracy etc., which must be  Main debate/tension is not so much about
the state to analysed on their own terms. the Rule of Law per se, but about
achieve its desired competing ideologies and conceptions of
political, economic the good. The question is, are these ‘add-
and social ons’ truly integral to the rule of law, or
outcomes should they be analysed on their own

Thick conception of the rule of law Thin conception of the rule of law
 Those who espouse substantive conceptions of the rule  Formal conceptions of the rule of law do not seek to
of law accept that the rule of law has formal attributes pass judgment upon the actual content of the rule of
(see thin conception) but wish to take the doctrine law. Instead, they merely address the manner in which
further. the law was promulgated (i.e. was it by a properly
 They believe that certain substantive rights (e.g. authorised person, in a properly authorised manner?)
political, moral and economic ideology, human rights) (Paul Craig)
are based on, or derived from the rule of law.
Dicey’s approach
Criticism  The thin conception is regularly associated with AV
 This conflates the rule of law with substantive justice. Dicey, who proposed the following “core” aspects of a
Clearly, the problem here is that everyone has different rule of law:
conceptions of what “justice” entails. o The absolute supremacy of regular law as
 In avoiding the metaphysics of natural law/the natural opposed to the influence of arbitrary
rights theory, Dworkin located the community as the power/discretion
source of these rights. However, Tanahama has astutely o Equality before the law: All classes, including
pointed out that Dworkin’s approach “denies the govt., are to be subject to ordinary law
ultimately contestable nature of the disputes” as it administered by ordinary law courts
ignores the fact that “there is no uncontroversial way to  There is also a host of other sub-rules, e.g. transparency,
determine what these rights entail” as basic rights to openness
equality, privacy and liberty are intensely contested
concepts. Joseph Raz’s approach (commended in Thio’s Treatise, p. 172)
 Since everyone has different conceptions of substantive  Raz submits that the most important aspect of the Rule
justice, the rule of law then problematically becomes an of Law is that it must be capable of guiding the
“empty container” into which any favoured philosophy behaviour of its subjects.
may be poured” – i.e. definition so all-encompassing as  The formal rule of law is “indifferent towards the
to be virtually useless (Thio’s Treatise, p. 169). substantive aims of the law and is ready to serve a
variety of such aims with equal efficiency.”
 It is just one virtue of a legal system and is not to be
confused with democracy, justice, equality or human
rights of any kind

 Potential use of legal system to suppress enemies in the
name of “security” instead of protecting rights
(controversy over ISA as a tool to defeat political
 Need to distinguish from ‘rule by law’, or bare legality,
which means following stipulated procedural safeguards
without regard to the quality of the law, which means
that law may be reduced to a tool of government

NB: Singapore’s approach: A technocratic standard?

 In Singapore, the rule of law is apprehended not as an ideological ideal but as a technocratic standard which supports
predictable and efficient results by requiring that laws be clear, accessible and general in the sense of equal applicability.
 Unlike a teleological approach, this focuses not on intrinsic values but the external ends served by the rule of law, e.g.
promoting economic development. This is consistent with the ‘thin’ version of the rule of law, which does not seek to pass
judgment on the content of the law. Instead, the rule of law’s key tenets are established in our legal system, with an
emphasis on the supremacy of law, equality before the law, and other sub-rules such as transparency, openness and
prospective application of our laws, observations of the principles of natural justice, independence of the judiciary and
judicial review of administrative action.

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 “If the government had failed to establish the basics for political stability and social cohesion, the Rule of Law would have
become an empty slogan in a broken-backed Singapore. But we have succeeded, and the Rule of law today in Singapore is
no cliché.” (PM Lee, 1990)
 Note that the CA in Chng Suan Tze v MHA [1988] and the HC in Teo Soh Lung v MHA articulated different
understandings of the ‘rule of law’.
o Chng Suan Tze v MHA: “All power has legal limits and the rule of law demands that courts should be able to
examine the exercise of this discretionary power.” Executive only has power to act in accordance to ROL – courts
can arrest in case of Ultra Vires. Based on this view, the rule of law is seen as a principle of limited government,
and the judiciary is seen as a check on the power of other state organs. Formal adherence to rules is seen as a
means to ensure that power is kept under restraint. While this approach may still be classified under the “thin”
conception of the rule of law, it is “thicker” than the approach in Teo Soh Lung in that it makes reference to some
substantive principle – viz., that of limited government.
o Teo Soh Lung v MHA: Under the ISA, it is for the executive to act upon its own discretion to decide which activities
are prejudicial to national security. This does not constitute an abrogation/violation of judicial power. This
demonstrates a more formalistic (“thinner”) approach to the rule of law. The content of the rule does not matter
– formal adherence to the rule itself is sufficient. Legal clawback. Can also be read as in line w ROL – judiciary vs

o Controversy #2: Liberal vs non-liberal conceptions of the rule of law

 Strong tendency of mainstream scholarship to equate the rule of law with western liberalism whose
primary orientation is individual autonomy and the pursuit of one’s own vision of the good
 Prof Brian Tamanaha contends that the populist understanding of the rule of law in Western societies
does not travel well in Asia as many societies in Asia reject liberal values while seeking the rule of law
(e.g. single-party countries like China, Vietnam).

 Decline of the rule of law in the West?

o Breakdown of order and security
o Lack of distributive justice – welfare states?
o Danger of rule by judges (juristocracy) – leading to politicized courts and judicial over-activism in the name of
the “living constitution”
 E.g. The rule of law is a fraud if the judges base their legal decisions on “personal views” or subjective
political preferences.
 VK Rajah, Interpreting the Constitution (ST 30 May 2015): “I now wish to deprecate what may politely
be called non-textual approaches to interpreting the Constitution... If judges go beyond textual
considerations in interpreting the Constitution, they are really repudiating the Constitution and
constitutional supremacy and substituting their personal views.”
 Undermines legitimacy of courts as impartial tribunals guided only be the law
 Usurping the province of democratically elected branches, diluting every citizen’s
democratic choice.

 The rule of law in Singapore

o Chng Suan Tze: “All power has legal limits and the rule of law demands that the courts should be able to
examine the exercise of discretionary power.” – Affirmed by CA in Tan Seet Eng at [2]
o Judicial review is the engine of the rule of law: Tan Seet Eng v AG (2015) SGCA 59 at [1]: “One of [the rule of
law’s] core ideas is the notion that the power of the State is vested in the various arms of government and that
such power is subject to legal limits... Judges are entrusted with the task of ensuring that any exercise of state
power is done within legal limits.”

Rights, Public Goods & Duties:

 Rights & Remedies (Part IV)
o Limit on state power: duty of non‐interference
o Limits on Rights and Limits on Limits of Rights
o Legal and Non‐Legal Enforcement e.g. Parliament
 Responsibilities/Duties
o Art 21(3) – President’s duty to consult Council of Advisors
o Art 152 – Duty to protect racial and religious minorities
 Public Goods and Limitations
o e.g. public order, public health, public morality
o Infectious Diseases Act – When should we limit liberty for public good?

Constitutional and Parliamentary Supremacy

 While constitutional supremacy means that the constitution is the supreme law (to which every other power is
subordinate), parliamentary supremacy means the unlimited capacity of Parliament to make or unmake any law
whatsoever on any matter. According to Dicey, this means that no person or body is recognised as having power to

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override or set aside the laws created by Parliament. Parliamentary supremacy exists in the United Kingdom, where the
Constitution is unwritten.

Parliamentary Supremacy Constitutional Supremacy

(e.g. UK) (e.g. US)
Legislature = Superior Legislature = Coordinate
Associated with political constitutionalism Associatd with legal constitutionalism
Unlimited legislative power: original Limited legislative power: Derived
 Parliament is omni-competent  Legislative power is derived from the Constitution
 Parliament cannot bind its successors as the paramount law made by the people
Right to make or unmake any law (subject to political checks Legal checks: Consistency of laws with constitutional
– e.g. affects performance in subsequent elections) standards
Legislature is superior to the judiciary/executive Legislature is co-ordinate with the Executive and the Judiciary
Limited judicial review: Illegal administrative action Powers of judicial review are more extensive
 Judiciary can only decide that an administrative act  Judges can make pronouncements on the
is illegal at best – it cannot strike down legislation. unconstitutionality of legislation and decide cases
 At most, it can only issue a ‘declaration of where laws conflict
incompatibility’ (A declaration of incompatibility is
a declaration issued by judges in the United
Kingdom that they consider that the terms of a
statute to be incompatible with the UK's obligations
under the Human Rights Act 1998, which
incorporated the European Convention of Human
Rights into the UK domestic law.)

Constitutional Supremacy
What does it mean to say the Constitution is supreme?
 Since the state derives its existence from the constitution, every law and every power – executive, legislative or judicial –
is subordinate to and controlled by the constitution (Dicey). This is similar to the judicial understanding espoused in Lo
Pui Sang: “This is what constitutional supremacy means: If the Legislature and the Executive must follow it, so must the
Court. Everyone obeys it.”

What makes the Constitution supreme?

 The Constitution’s supreme status rests on the following two requirements (Wheare):
o Firstly, it must have been enacted or approved or promulgated by a body recognised as competent to
make law (see below). This body may be (a) some external legislative body, or (b) a constituent assembly
chosen in some way, often the people, and recognised as having authority to establish a constitution.
o Secondly, its status as a supreme law derives from the fact that it is the product of a body which as power
to make supreme law. Such a body generally derives its power from a moral perspective because it is said to
express the will of the people, and is therefore binding upon every individual.
 The power to make a constitution cannot derive from within the legal system. Instead, it has to be an extraordinary
political act. It is a political act which creates the legal system.
 It is theoretically incorrect to say that the Parliament has the power to make the Constitution. This is because
Parliament itself derives all its powers from the Constitution. Thus, which body creates the constitution?
o Based on the idea of popular sovereignty, it is typically a body of people – a Constituent Assembly (“We
the People”) – which has the authority to create the Constitution. The Constituent Assembly is typically
composed of representatives chosen by the people. Since there is typically no established system of
elections before the Constitution comes into place, a diverse array of delegates which is representative of
the population will be chosen (i.e. different geographical areas, different races etc.)
o Alternately, it may be an external legislative body (e.g. Parliament of United Kingdom), or a law-giver which
existed before they did and which is external to themselves.
 The process of drafting the Constitution: The Constitution is essentially a negotiation instrument, an instrument of
compromise. This is because one of the key dangers of a democracy is tyranny of the majority. Accordingly, it is
necessary to entrench the minority rights. Thus, an important function of the Constitution is that it serves as a “pre-
commitment strategy” – it ensures that the minority’s rights remain protected by balancing long- and short-term
competing interests.

Since Singapore never had a constituent assembly, what makes the Singapore Constitution supreme?
(NB: Look at Thio’s Treatise – does it expound on the arguments below?)
1. Supremacy clause (Art 4)

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a. Essentially, the Constitution confers supremacy on itself through Article 4, which provides that a
consequence of the supremacy of the Constitution, all laws which are inconsistent with the Constitution are
simply void.
b. This may seem like a circular argument, but it is simply a positivist approach to the problem.
2. Normative theory: Natural law
a. Stems from the idea that the monarch is not absolute and does not hold indivisible power. Instead, the
state is merely an agent/servant of the people: Ultimate authority vests in the people themselves
(consistent with the idea of popular sovereignty).
3. Logical priority
a. If the legislature, which is the fountain of all laws, is legitimated by the Constitution, then it necessarily
follows that the Constitution must be supreme.
4. Sociological acceptance
a. In the case of Singapore, we never had a Constituent Assembly, so resort to history does not really help us.
b. The cure for this original historical “defect” is sociological acceptance. Since we all accept that the
Constitution is supreme as a social fact, then it necessarily follows that the Constitution must be supreme.
5. Moral necessity (Wheare’s argument)
a. The Constitution is supreme because its supremacy is necessary to avoid anarchy and social chaos.
b. KC Wheare, Modern Constitutions: “A Constitution cannot be disobeyed with the same degree of
lightheartedness as a Dog Act. It lies at the basis of political order; if it is brought into contempt, disorder
and chaos may soon follow.”
6. International law
a. Didn’t catch this part

Why is constitutional supremacy important?

 Tan Eng Hong v AG (2012) SGCA 45 at [60]: “The supremacy of the Constitution is necessary for the purposes of the
Constitution to be protected as it ensures that the institutions created by the Constitution are governed by the rule of
law, and that the fundamental liberties under the Constitution are guaranteed.”

Constituent Assembly  Constituent Power  Constitution

 “We the people”  Lies outside the legal system Institutions

 Appeal to popular proper  Legislature (Represents
sovereignty  Vested in the people (original the will of the majority
power holders) which is reflected in
 Every other power is not Acts)
original, but derived from the  Executive
Constitution.  Judiciary


Criteria for assessing Constitutional Supremacy

3 different criteria
 Supremacy clause (Art 4, Art 162)
 Amendment procedure
 Review Mechanism (Art 9, Art 149)

(1) Supremacy clause (Art 4, Art 162)

Supremacy of Constitution
4. This Constitution is the supreme law of the Republic of Singapore and any law enacted by the Legislature after the
commencement of this Constitution which is inconsistent with this Constitution shall, to the extent of the inconsistency, be

Existing laws
162. Subject to this Article, all existing laws shall continue in force on and after the commencement of this Constitution and all
laws which have not been brought into force by the date of the commencement of this Constitution may, subject as aforesaid,
be brought into force on or after its commencement, but all such laws shall, subject to this Article, be construed as from the
commencement of this Constitution with such modifications, adaptations, qualifications and exceptions as may be necessary
to bring them into conformity with this Constitution.
 Transitional provision

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 Laws which are inconsistent with the constitution must be construed in conformity with the Constitution

Interaction between Art 4 and s 162:

Case Prabagaran a/l Srivijayan v Public Prosecutor (2016) SGCA 67
Rule/Remarks  [34]: ““…Art 4 of the Constitution provides for the unconstitutional portion of a law to be severed
while retaining the remaining part in the statute – what is commonly termed as the doctrine of
 [41]: “Art 162, which falls under Part XIV of the Constitution titled "Transitional Provisions”,
applies only to an existing law or a law which had already been enacted but not yet brought
into force at the commencement of the Constitution... Having said that, [an act which does
not fall under Art 162] would fall to be governed by Art 4 of the Constitution where the doctrine
of severability... could apply.”

Case Tan Eng Hong v AG (2012) SGCA 45

Rule/Remarks  Art 62 limited: [58]: “While Art 162 imposes a duty on the courts to construe modifications, etc,
into unconstitutional existing laws, it is clear that there are limits to construction. It is a trite
principle of statutory construction that the interpretation adopted cannot be inconsistent with
the express statutory wording... In our view, Art 162 only directs that all laws be read in
conformity with the Constitution as far as this is possible.”
 If construing modification into an unconstitutional law is impossible, it will be struck down:
[59]: “In the event that construing a modification into an unconstitutional law is impossible, the
supremacy of the Constitution must continue to be upheld, and the offending legislation will be
struck down under Art 162 read harmoniously with Art 4. To the extent that any law does not
conform to and cannot be reconciled with the Constitution through a process of construction, it is
 [61]: “On our understanding, Art 4 and Art 162 share this overarching aim of upholding the
supremacy of the Constitution. Nonetheless, the two Articles have different, although not
conflicting, means of doing so.”
o “Article 162 is clearly a transitional provision which specifically deals with existing
laws... the purpose of Art 162 was to expressly provide for the continuity of existing
laws in order to: (a) prevent lacunas in the law from arising as a result of the doctrine of
implied repeal; and (b) eliminate the need to re-enact the entire corpus of existing laws
when Singapore became an independent republic.”
o “In addition to preserving existing laws, Art 162 also provides for the supremacy of the
Constitution to be upheld by stipulating that all laws (including existing laws) shall be
construed in conformity with the Constitution.”

The grundnorm of our Constitution’s legitimacy (Singapore’s context)

 Singapore’s constitution does not have any true legal root. Instead, our grundnorm arises from political fact.
 The origins of Singapore’s constitution:
o No colonial bequest from Britain (cf: Anglo-Malayan Constitution)
o No constituent assembly where “we the people” could exercise their original sovereign will (which theoretically
transcends the legal order)
o Accidental nation: 9 August 1965
 Singapore’s independence Constitution was a composite one, cobbled together from the following
three documents: (a) The Constitution of the State of Singapore 1963, (b) the Republic of Singapore
Independence Act 1965, and (c) portions of the Malaysian Federal Constitution of 1957 (“An Act to
make provision for the Government of Singapore consequent on her becoming an independent and
sovereign republic separate from and independent of Malaysia.”)
o The grundnorm of our Constitution: Singapore’s constitution was not made by a Constituent Assembly, but
instead derived its juridical status from a legislative act. This legislative power was in turn conferred on
Parliament by “the political fact of Singapore’s independence” (PP v Taw Cheng Kong).
 As an exercise in self-determination, Singapore had the right to freely determine its political status
and to pursue economic, social and cultural development.
 Accordingly, “it was the political fact of Singapore’s independence and sovereignty which had the
consequence of vesting the Legislative Assembly of Singapore with plenary powers on Singapore
Day” (PP v Taw Cheng Kong), and it was Parliament’s legislative power which enabled it to enact the
Constitution and make other constitutional enactments.
 However, note that despite Singapore’s constitutional origins, appeal to popular sovereignty is still heavily relied upon
in political discourse.
o E.g. A response given by the Law Minister to a parliamentary question asked during the 2008 pbudget debates
as to whether voting as an implied constitutional right made reference to the fact that there was, ultimately,
no institution which was “superior to the body of citizens”. Thus, “the People” still operates as the mythical
crutch upon which the legitimacy of the Constitutional order lies (Thio’s Treatise, p. 37).

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(2) Constitutional Amendment Procedure

 The ease of amending a constitution is important because it has implications on the constitution’s flexibility/rigidity.
Generally, a Constitution should possess both an element of flexibility as well as a degree of rigidity.
o Flexibility: The end of the Constitution is the safety, greatness and well-being of the people. Changes in the
Constitution serve these great ends and carry out the real purposes of the Constitution (Teo Soh Lung). A
degree of flexibility is necessary to ensure that the Constitution continues to serve its function by evolving in
accordance with societal needs, as a constitution that does not bend will break. Thus, most constitutions can
be amended.
o Rigidity: The Constitution’s status as supreme law means that it must be capable of being changed only by
some body above the ordinary legislative bodies of the state (Dicey, p. 103 Tan & Thio).

 Differentiated provisions in Singapore for different provisions.

o As a general rule, any Bill seeking to amend any provision in this Constitution shall not be passed by Parliament
unless it has been supported on Second and Third Readings by the votes of not less than two‐thirds of the total
number of the elected Members of Parliament referred (Art 5).
o However, note exceptions: Art 6, old Art 5(2A) (never entrenched for 20 years), old Art 5A, new Art 5A-C
o To consider: Although the procedure for amending the Constitution is more onerous in theory, does this
necessarily make it more onerous in practice? This is heavily dependent on Singapore’s political realities – with
a ruling party that occupies substantially more than 2/3 of the seats in Parliament, how effective is this
requirement. Look at the WCJ Commission Report

 Amendment procedure history in Singapore:

o Used to be uncontrolled, highly flexible (1965-
1979). Why? In the early years of Singapore’s
development, it was necessary to make a large
number of constitutional developments. Later,
this became less necessary: “All consequential
amendments that have been necessitated by our
constitutional advancement have now been
enacted” (EW Barker, SPD, 30 March 1979 at col
 Constitutional provisions could be
amended by simple majority
 Implied repeal?
o Now: Controlled, but still fairly flexible
 Art 5: 2/3 Parliamentary majority
 Old Art 5(2A), Art 5A Procedure
 New (as of 2016), Art 5A, B and C.
o Lots of constitutional changes since 1984 (see image above)

 General approach to constitutional amendments in Singapore = Flexible

o “From my experience, constitutions have to be custom-made, tailored to suit the peculiarities of the person
wearing the suit. Perhaps, like shoes, the older they are, the better they fit Stretch them, soften them, resole
them, repair them. They are always better than a brand new pair of shoes.” (PM Lee Kuan Yew, SPD, 24 July
1984, col. 1735)
o It is formally harder to amend the constitution in Singapore (2/3 majority is required). But this presently means
quite little given Singapore’s political scene.
o Constitutional amendments are beyond remit of courts: “An amendment of the Singapore Constitution is
obviously beyond the remit of our courts. It is nevertheless important to emphasise that the possibility of
constitutional amendment just referred to furnishes our Parliament with the necessary flexibility to ensure that
the Singapore Constitution reflects the prevailing social mores as well as aspirations of Singapore society.”
(Lim Meng Suang v AG, (2015) 1 SLR 26 at [92]).

(3) Constitutional Review Mechanisms

 Judicial review
o The judiciary is capable of striking down unconstitutional acts: Taw Cheng Kong v PP (1998) SGCA 37 [89]: “The
courts…will no doubt readily invalidate laws that derogate from the Constitution which is the supreme law of
our land.”
Art 93

Judicial power of Singapore

93. The judicial power of Singapore shall be vested in a Supreme Court and in such subordinate courts as may be provided by
any written law for the time being in force.

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But note: Art 149

Legislation against subversion
149.—(1) If an Act recites that action has been taken or threatened by any substantial body of persons, whether inside or
outside Singapore —
(a) to cause, or to cause a substantial number of citizens to fear, organised violence against persons or property;
(b) to excite disaffection against the President or the Government;
(c) to promote feelings of ill-will and hostility between different races or other classes of the population likely to cause
(d) to procure the alteration, otherwise than by lawful means, of anything by law established; or
(e) which is prejudicial to the security of Singapore,
any provision of that law designed to stop or prevent that action or any amendment to that law or any provision in any law
enacted under clause (3) is valid notwithstanding that it is inconsistent with Article 9, 11, 12, 13 or 14, or would, apart from
this Article, be outside the legislative power of Parliament.
 If there are specific laws which are capable of overriding Constitutional provisions, is the Constitution really supreme?
Does this mean that the government is not subject to the rule of law?

 Constitutional Tribunal
o E.g. Tribunal was asked to determine a question regarding the President’s powers in Const Ref. No. 1 of 1995
[1995] 2 SLR 201
Art 100

Advisory opinion
100.—(1) The President may refer to a tribunal consisting of not less than 3 Judges of the Supreme Court for its opinion any
question as to the effect of any provision of this Constitution which has arisen or appears to him likely to arise.

 Non-judicial Review
o Cf UK, where elected officials have the final say and are removable by ballot box
Art 77

Functions of Council in respect of Bills and subsidiary legislation

77. It shall be the particular function of the Council to draw attention to any Bill or to any subsidiary legislation if that Bill or
subsidiary legislation is, in the opinion of the Council, a differentiating measure.

Indian Basic Features Doctrine**

 How does the “Basic Features” doctrine come into play?
o What are the limits to amending the constitution, and what kind of limits are they? Are they substantive or
procedural in nature?
Substantive limits Procedural limits
Legislative - Eternity clause (which does not exist in Procedural requirements which make it more
Singapore) difficult/onerous to alter the constitution
 An eternity clause is an entrenched clause intended  E.g. Singapore – 2/3 Parliamentary majority
to ensure that the the Constitution or specified required to amend constitution (Art 5(2))
provisions of the Constitution cannot be changed by  Different from substantive limit in the sense that it
amendment. is purely procedural – “so long as the numbers are
 E.g. Germany, Czech Republic on your side, the amendment can be made”
Judicial doctrine – “Basic features” doctrine (India)
 Method/model of interpretation: Used Preamble
and Directive Principles to “read down” Art 368 (i.e.
the equivalent of Art 5(2) in Singapore’s
 The legal consequence of making amendment
which is inconsistent with the “basic features” is
that the amendment will be void.

 The Indian Basic Features doctrine

Case Kesavananda v Union of India AIR 1973 SC 1561
Facts  Involved an attempt to abrogate the constitutional right to property in order to effectuate land
 The court argued that the legislative power to amend the Indian Constitution (under Art 368) was
limited to amendments which did not alter the “basic structure” of the Indian Constitution
(thereby imposing as substantive limit on the court’s power to amend the constitution).
Rule/Remarks Majority (led by Sikri J):

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 “It seems to me that reading the Preamble, the fundamental importance of the freedom of the
individual, indeed its inalienability, and the importance of the economic, social and political
justice mentioned in the Preamble, the importance of the directive principles... an irresistible
conclusion emerges that it was not the intention to use the word ‘amendment’ in the widest
 “I am driven to the conclusion that the expression ‘amendment of the Constitution’... means any
addition or change in any of the provisions of the Constitution within the broad contours of the
Preamble and the Constitution to carry out the objectives in the Preamble and the Directive
Principles. Applied to fundamental rights, it would mean that while the fundamental rights
cannot be abrogated reasonable abridgments of fundamental rights can be effected in the public
o The “Basic Features” doctrine is essentially a model of interpretation – Sikri J used the
Preamble and the Directive Principles to “read down” Art 368 (Indian equivalent of Art
5(2) in Singapore Constitution)
 “Every provision of the Constitution can be amended provided in the result the basic foundation
and structure of the Constitution remains the same. The basic structure may be said to consist
of the following features:
o Supremacy of the Constitution
o Republican and Democratic form of government
o Secular character of the Constitution
o Separation of powers between the legislature, the executive and the judiciary
o Federal character of the Constitution
 The above structure is built on the dignity and freedom of the individual. This is of supreme
importance. This cannot by any form of amendment be destroyed.”

Minority (Ray J):

 Vagueness & Indeterminacy: “To find out essential or non-essential features is an exercise in
imponderables. When the Constitution does not make any distinction between essential and
non-essential features it is incomprehensible as to how such a distinction can be made.”
o Chief critique of the “Basic Features” doctrine is that it is essentially subjective in
nature. By interpreting what is or is not an essential feature of the Constitution, judges
are essentially entering the political arena.
o “In the ultimate analysis, it is the Court which will pronounce on the amendments as to
the effect of robbing Parliament of the power of amendment and reposing the final
power of expressing validity of amendment in the Courts.”
 No such thing as “inalienable” (and therefore unalterable) basic rights: “The basic autonomy
and dignity of human personality is the moral foundation of the teaching of modern natural law
philosophers like Maritain... It will be wrong to equate fundamental rights as natural, inalienable,
primordial rights which are beyond the reach of the amendments of the Constitution.”
 Fundamental principles may evolve over time; a constitution that does not bend will break:
“Fundamental or basic principles can be changed. There can be radical change in the
Constitution like introducing a Presidential system of government for a cabinet system or a
unitary system for a federal system. But such amendment would in its way bring all
consequential changes for the smooth working of the new system.”
 “To... uphold[d] the power to amend the essential features but not the core on the theory that
only people can change by referendum is to rewrite the Constitution.”

 Application to Malaysia
o Traditional view: Not applicable
Case Loh Kooi Choon v Government of Malaysia (1977) 2 MLJ 187
Facts  The appellant had been arrested and detained under a warrant issued under the provisions of the
Restricted Residence Enactment.
 The appellant had not been produced before a Magistrate within twenty-four hours of his arrest.
 He claimed damages but it was held that no action could be brought against the police officer as
he was acting in compliance with a warrant issued by a competent authority.
 The appellant appealed but before the appeal was heard the Federal Constitution was amended
by Act A354/76 which provided in effect that Article 5(4) of the Constitution shall not apply to the
arrest or detention of any person under the existing law relating to restricted residence and that
this amendment shall have effect from Merdeka Day.
 It was argued that the amendment was unconstitutional.
Rule/Remarks  “I do not feel that the issue before this court would call for my view on whether there are indeed
inherent or implied limitations to the power of amendment under Article 159, and must perforce
confine myself to the issue before us viz. is the amendment to the fundamental right set out in
Article 5 by Act A354/76 constitutional?” (i.e. strictly obiter dicta?)

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 No preamble: “The power to amend would not, in this country, be restricted by anything set out
in a Preamble for there is no Preamble to our Constitution.
 If Parliament intended a limit, it would have introduced it: “It seems to me to be clear that if
there is to be any restriction to the right to amend any of the fundamental rights set out in Part
II, such restriction would have been set out in one of the various clauses of Article 159 itself.”

Case Phang Chin Hock v PP [1980] 1 MLJ 70:

Facts  The appellant had been convicted of the offence of unlawful possession of ammunition and
sentenced to death.
 He was tried in accordance with the Essential (Security Cases) Regulations, 1975 which were held
to be invalid in Teh Cheng Poh v Public Prosecutor [1979] 1 MLJ 50 but were subsequently
validated by the Emergency (Essential Powers) Act 1979.
 In the appeal by the appellant it was argued, inter alia:
o Even if the amendments made by Parliament in accordance with article 159 may be
inconsistent with the existing provisions of the Constitution, the court should read into
the Constitution implied limitations on the power of Parliament to destroy the basic
structure of the Constitution;
o Even if the Emergency (Essential Powers) Act 1979 is valid, ss 2(4), 9(3) and 12 thereof
are void as they destroy the basic structure of the Constitution.
Rule/Remarks Argument #1 against applicability of “Basic Features” doctrine:
 Indian Constitution made by Constituent Assembly: “As the Constitution was made by a
Constituent Assembly not by ordinary mortals, it is this perhaps which has influenced the Indian
courts in their view that... there are implied limitations on that power to amend as to affect
fundamental liberties and destroy the basic structure of the Indian Constitution.”
 Cf Malaysia: “In Malaysia, on the other hand, the Constitution was the fruit of joint Anglo-
Malayan efforts and our Parliament had no hand in its drafting... Malaya had a ready-made
constitution and there was no occasion for Malayans to get together to draw up a Constitution”

Argument #2 against applicability of “Basic Features” doctrine:

 Indian Constitution contained preamble which was said to be the ‘soul’ of the Constitution:
“The Indian Constitution contains a preamble which states quite explicitly that the Constitution
was made by the people of India in their Constituent Assembly... The Indian Constitution also
contains in Part IV ‘directive principles of state policy’ which... set out national objectives which it
was thought desirable that the State should promote.”
 Quoting Chief Justice of Supreme Court of India, M Hidayatullah: “I regard [the Preamble] as the
soul of the Constitution eternal and unalterable”
 “Thus it is understandable that Indian jurists should infer from the Preamble and Directive
Principles ideas and philosophies animating the Indian Constitution and controlling its
interpretation so much that there are limits on the power of the Indian Parliament to amend the
 Cf Malaysia: “Our Constitution has no preamble and no directive principles of state policy.”

o New view: Potentially applicable?

Case Sivarasa v Badan Peguam Malaysia (2010) MLJ 333 at 342
Facts  The appellant, an advocate and solicitor and a member of Parliament, wished to serve as an
elected member on the Bar Council, the governing body of the Malaysian Bar.
 However, s 46A(1) of the Legal Profession Act 1976 (‘the Act’) disqualified amongst others a
member of Parliament from being a member of the Bar Council or a Bar Committee.
 The appellant challenged the constitutionality of s 46A(1) of the Act on the grounds that the
section violated his rights of equality and equal protection, right of personal liberty and right of
association under the Constitution.
 The appellant’s sustained submission was that the fundamental rights guaranteed under Part II
of the Constitution were part of the basic structure of the Constitution and that Parliament could
not enact laws, which included Acts amending the Constitution, which violated that basic

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Rule/Remarks  [8]: “[I]t is clear from the way in which the Federal Constitution is constructed there are certain
features that constitute its basic fabric. Unless sanctioned by the Constitution itself, any
statute (including one amending the Constitution) that offends the basic structure may be
struck down as unconstitutional. Whether a particular feature is part of the basic structure must
be worked out on a case by case basis. Suffice to say that the rights guaranteed by Part II which
are enforceable in the courts form part of the basic structure of the Federal Constitution.
See Keshavananda Bharati v State of Kerala AIR 1973 SC 1461.”
 Criticism #1: Prof Thio submits that this is one instance where the judge simply made an
assertion (i.e. that there are basic features of the Federal Constitution) but failed to support it
with reasoning.
 Criticism #2: The reference to the need for sanctioning by the Constitution (“unless sanctioned
by the Constitution itself”) suggests that the Constitution itself is still the ultimate authority on
the validity of constitutional amendments (i.e. that there is no ‘higher law’ than the
Constitution). However, the fact that the judge quoted Kesavananda suggests that the court was
willing to adopt the “Basic Features” doctrine as applied in India. Essentially, it is unclear what
the judge intended by this confusing statement.

 Application to Singapore
o “Basic Features” doctrine is inapplicable
Case Teo Soh Lung v MHA [1989] 1 SLR (R) 461
Essentially endorsed Ray J’s dissenting judgment in Kesavananda
Facts  In 1987, the appellant, Teo Soh Lung, was detained under the Internal Security Act (ISA) for her
alleged involvement “in a Marxist conspiracy to subvert and destabilise the country to establish a
Marxist state”.
 She successfully applied for habeas corpus but was subsequently rearrested.
 In January 1989, Parliament passed the Constitution of the Republic of Singapore (Amendment)
Act and the Internal Security (Amendment) Act which amended s 8 of the ISA. They came into
operation respectively on 26 and 28 January 1989.
 Two issues:
o First, whether the purported amendments to the Constitution and the ISA had the
effect of depriving the applicant of her right to effective judicial review of the legality,
rationality and constitutionality of her detention under the ISA.
o Second, if so, whether the amendments contravened the Constitution such that they
were void.
Rule/Remarks #Argument 1: If Parliament had intended to impose limits, they would have been expressly provided
 [34]: “If the framers of the Singapore Constitution had intended limitations on the power of
amendment, they would have expressly provided for such limitations. But Art 5 of the
Constitution does not put any limitation on the amending power.”
o [35]: “If the courts have the power to impose limitation on the legislature’s power of
constitutional amendments, they would be usurping Parliament’s legislative
 Quoting Lord Diplock in Hinds at [37]: “[T]he constitution provides machinery whereby any of its
provisions, whether relating to fundamental rights and freedoms or to the structure of government
and the allocation to its various organs of legislative, executive or judicial powers, may be altered by
those peoples through their elected representatives in the Parliament acting by specified majorities,
which is generally all that is required, though exceptionally as respects some provisions the
alteration may be subject also to confirmation by a direct vote of the majority of the peoples
 Quoting Loh Kooi Choon at [38]: “A short answer to the fallacy of this doctrine is that it concedes
to the court a more potent power of constitutional amendment through judicial legislation than
the organ for and clearly chosen by the Constitution for the exercise of the amending power.”

#Argument 2: Different constitutional origins (no Constituent Assembly)

 [47]: “I am of the view 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.”
 Recall that the Indians viewed the Constituent Assembly as “demi-Gods” of sorts – more than
“mere mortals”. This had some bearing on the decision in Kesavananda.

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NB – [47]: “In any case, in my judgment, none of the amendments complained of has destroyed the basic
structure of the Constitution. Mr Lester in the course of his argument enumerated the manner in which, in
his submission, Parliament has violated the basic structure of the Constitution. However, I am of the view,
that they do not violate the basic structure of the Constitution.”

o But new doctrine: “Basic Structure” model? What is this and how is it different from “Basic Features”, if at all?
Case Mohd Faizal bin Sabtu v PP [2012] 4 SLR 947 at [11]-[15]
Facts  Mr Mohammad Faizalbin Sabtu challenged the constitutionality of ss 33A(1)(a), 33A(1)(d) and
33A(1)(e) of the Misuse of Drugs Act.
 The said subsections essentially provide for enhanced punishment for persons who had
previously been admitted to an approved Drug Rehabilitation Centre (“DRC”), previously
convicted of consumption of a specified drug, or previously convicted for an offence of failure to
provide a urine specimen.
 Issue: Did the impugned s 33A MDA provisions constitute an impermissible legislative intrusion
into the judicial power and accordingly violate the principle of separation of powers embodied in
the Constitution of the Republic of Singapore?
Rule/Remarks  [11]: “The 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 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.”
o “Article 38 of the Singapore Constitution vests the legislative power of Singapore in the
Legislature consisting of the President and Parliament. Article 23(1) of the Singapore
Constitution vests the executive power (or authority) of Singapore in the President,
which power is “exercisable subject to the provisions of this Constitution by him or by
the Cabinet or any Minister authorised by the Cabinet”. Article 93 of the Singapore
Constitution vests the judicial power of Singapore in “a Supreme Court and in such
subordinate courts as may be provided by any written law for the time being in force”.”
 [15]: “It should be noted that Art 4 of the Singapore Constitution states that any law inconsistent
with “this Constitution” (i.e. includes implied terms), as opposed to any law inconsistent with
“any provision of this Constitution” (i.e. express terms only), is void. The specific form of words
used in Art 4 reinforces the principle that the Singapore parliament may not enact a law, and the
Singapore government may not do an act, which is inconsistent with the principle of
separation of powers to the extent to which that principle is embodied in the Singapore

Prof Thio’s Interpretation of Mohd Faizal bin Sabtu v PP

The “Basic Structure” doctrine espoused by the SGHC in Mohd Faizal is different from the Indian “Basic
Features” doctrine in two key ways.
 Firstly, the method of derivation. The “Basic Features” were essentially derived through
interpretation. The court used the Preamble and Directive Principles to “read down” the
amendment provision. By contrast, the “Basic Structure” doctrine involves implication. Apart
from looking at the other constitutional provisions, the court looked at the structural features of
the Westminster model to determine the “Basic Structure” common to all Westminster models.
The court then held that the doctrine of separation of powers was implicit in the Singapore
 Secondly, the meaning of the word “basic”. Prof Thio asserts that there are 2 ways in which
the word “basic” can be interpreted:
o Firstly, it can be interpreted to mean “immutable”, which means that there are legal
consequences attached to it (as in the Indian Basic Features doctrine). More specifically,
any law inconsistent with the “Basic Features” would automatically be void.
o Secondly, it can simply be interpreted to mean “important”. Prof Thio submits that the
“Basic” in the Singaporean “Basic Structure” model may be interpreted to mean that it
is simply a very important characteristic of the Singapore model.
 If the “Basic Structure” merely refers to aspects the Constitution which are deemed
important, how do you explain the result in this case?
o It was decided on another ground, i.e. by implication.
o Art 4 of the Singaporean Constitution provides only that any law inconsistent with “this
Constitution” will be void. The fact that there is no reference to inconsistency with
express provisions means that the drafters contemplated that laws inconsistent with
implied provisions would likewise be void. Accordingly, in this case, since the court
implied the separation of powers doctrine into the constitution, an amendment
inconsistent with that doctrine would be void.

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 CAUTION: Do not confuse the “basic structure” doctrine with “implication”. Implying something
into the constitution does not automatically mean that it is part of the Constitution’s basic
structure. While implication is a method, “basic structure” is a theory.

Criticism of the “Basic Structure” theory

 However, it is difficult to define what is determinatively part of the Westminster model and what
is merely an “add-on” in some jurisdictions. For example, if the Bill of Rights is a fundamental
aspect of a Westminster Constitution, then why doesn’t Australia/New Zealand have a Bill of
Rights?  Suggests that not all features of the Westminster model are universal.
 Moreover, Lord Diplock argues in Hinds v The Queen that even if some Constitutions have a Bill
of Rights, the Bill can be amended and is therefore not ‘basic’ in the Indian sense. (To check case)

Case Yong Vui Kong v PP [2015] 2 SLR 1129 (obiter)

Rule/Remarks  [69]: “An example of a feature that is part of the basic structure of the Constitution is the
separation of powers (as was held in Mohammad Faizal). Another example is possibly the right to
vote. This right cannot be found in the Constitution...”

Deriving content of basic structure through structural ‘Westminster model’ argument (similar to Mohd
Faisal above)
 Cited Mohd Faisal and the argument in that case, i.e. that the doctrine of separation of powers
was a fundamental structural aspect of all Westminster models.
 [70]: “ Likewise, in Vellama d/o Marie Muthu v AG [2013] 4 SLR 1, we located the philosophical
underpinnings of the right to vote in the Westminster model of government set up by the
 [71]: “[I]n order for a feature to be considered part of the basic structure of the Constitution, it
must be something fundamental and essential to the political system that is established
 Criticism of this argument: See Mohd Faisal

Deriving content of basic structure through ’power-limiting’ argument

 As observed in Calvin Liang and Sarah Shi, “The Constitution of Our Constitution, A Vindication
of the Basic Structure Doctrine” Singapore Law Gazette (August 2014) 12 at paras 38 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. …
 Thus, the crux of this argument was that provisions of the Constitution which governed
institution-institution relationships fell within the “basic structure” if the Constitution since they
were power-limiting. By contrast, provisions which governed the relationship between the
individual and the state, and regulated rights and duties (i.e. Part IV of the Constitution) were not
power-limiting and therefore did not fall within the basic structure.
o Criticism: Prof Thio argues that the rights under Part IV of the Constitution. i.e. those
pertaining to individual rights and liberties, are in fact power-limiting in nature. In fact,
this was also argued in Hinds v The Queen (to check case).
 [72]: “We have outlined the contours of the basic structure doctrine above only to show that it is
inapplicable in the present case: clearly, there is nothing inherent in the system of government
set up by our Constitution which requires a finding that the prohibition against torture forms part
of its basic structure. However, this also means that it is unnecessary in this case for us to reach
the question of whether such a doctrine as was set down in Kesavananda is or is not a part of our
law, nor, if it were, what its extent or effect might be.”