Jaclyn L. Neo For The Straits Times

Should constitutional principles be eternal?

In August, the Law Gazette published an article by lawyers Calvin Liang and Sarah Shi on a legal doctrine known as the basic structure doctrine, which says that a country's Constitution has features so fundamental, they cannot be changed by Parliament through constitutional amendments. Mr Liang and Ms Shi cite two: the separation of powers and the legality principle, meaning all power has legal limits. Their arguments were reported in The Straits Times last month by senior law correspondent K. C. Vijayan. His article focused on what the doctrine might mean for calls to scrap the elected presidency.

Is there any part of the current constitutional order that can never be changed? More specifically, can an institution entrenched in the Constitution be eternal and unalterable under any condition?

These are questions raised in the article by senior law correspondent K. C. Vijayan ("Ending elected presidency may not work"; Sept 11).

Mr Vijayan cites a Law Gazette article arguing that the basic structure doctrine has been recognised in Singapore.

Specifically, he relies on an illustrative argument from the article, stating that "it may even be the case that a constitutional amendment to abolish the elected presidency may run into basic structure objections even though it is supported by referendum".

This position will alarm politicians and hearten some constitutional lawyers. The idea that there are real limits to political power lies at the heart of Constitutionalism. After all, constitutional law serves to constrain realpolitik, with courts imposing legal constraints through judicial review. However, the basic structure doctrine goes further than that. It posits that there is a basic structure to the Constitution that constrains the legislature such that Parliament cannot - even if it abides by the amendment procedure prescribed by the Constitution itself - amend certain fundamental features or elements of the Constitution.

However, there are three problems with this basic premise.

First, even if certain unwritten principles undergird the Constitution, which form its basic structure, these can be expressly overridden by an amendment to the Constitution.

So while we should be slow to scuttle founding principles, we should never make gods out of the creators of the Constitution by making these principles eternal. 

Second, the basic structure doctrine is problematic from the perspective of democratic government. It is a doctrine invented by the courts, and we quickly run up against what American constitutional scholar Alexander Bickel called "the counter-majoritarian difficulty". This posits that when judges strike down laws, they go against majority choices reflected in legislative Acts. Judicial review is commonly viewed with some circumspection because of this.

That said, it is trite that judges have a responsibility to uphold the Constitution. However, because the basic structure doctrine endows judges with the power to hold that certain features of the Constitution can never be amended, judges assume the power to perpetuate norms even in the face of democratic change.

Third, the cases relied upon by Mr Vijayan and the writers of the Law Gazette article demonstrate that unwritten principles can be used to interpret the Constitution in a certain way. This must be correct. However, the cases do not show that the principles are unalterable or that they could be used to strike down constitutional amendments.

Beyond these problems associated generally with the proposition that there are certain basic features in the Constitution that are unalterable, there are more specific objections to the claim that the elected presidency can never be altered. Even more radical is the claim that it cannot be abolished even if supported by a referendum.

Assuming we go along with the basic features doctrine, the proposition pertaining to the elected presidency is a serious overreach of its ambit, for three reasons.

First, even if the presidency reverts to its old ceremonial role, does it really fundamentally alter the separation of powers? The institution remains even if the president no longer has powers to check Parliament's powers. It may be that if we abolished the presidency entirely, a fundamental principle would have been breached, but not otherwise.

Second, while one may argue that certain basic features can never be changed - for example, that the government must always be based on the separation of powers or that the state must always be a federal state - the fact remains that these are broad and abstract principles that can be interpreted and administered in a number of ways.

The principle of separation of powers could be breached if Parliament abolished the judiciary or the legislature or the executive entirely, or fused them. However, it is not obvious at all that this principle is violated if the appointment procedure for the judiciary is changed, or if the composition of legislature is altered, or if the Cabinet size is increased.

Third, if the Constitution contains basic features, they must form part and parcel of the Constitution at least since 1965. But if that were so, did Parliament already contravene the basic features when it transformed the presidency in 1991 from a ceremonial role to an elected custodian?

So, can the elected presidency be abolished and the ceremonial presidency be reinstated? The legal answer must be "Yes". This would not fundamentally alter the separation of powers. Should there be constraints on Parliament's powers to change the Constitution?

Perhaps, and a democratic way is to subject certain amendments to a referendum. This in fact is provided for under Article 5(2A) of the Constitution, which is not yet in operation. Once the clause becomes effective, amendments to the elected presidency could be subject to a national referendum.

In conclusion, a note of circumspection. It is easy to support the basic features doctrine when we all agree on what these "features" are. But what if we don't? We should remind ourselves that the doctrine may fly in the face of popular sovereignty.

The assertion that there is an unwritten constraint against ever altering certain features must be regarded with some suspicion lest those who assume the power to determine those features end up elevating themselves, intentionally or otherwise, to the status of demigods. 

The writer is an assistant professor of law at the National University of Singapore