A pessimist’s perspective: why M Ravi’s constitutional challenge is unlikely to succeed

Source of image: Straits Times 

Although the Government never fails to remind Singaporeans of the Elected President’s (EP) role as the “second key” to the financial reserves, and one semester of constitutional law has attempted to teach me otherwise, I still see the EP as a (boring) ceremonial figure confined to ribbon-cutting and baby-carrying. So what if there’s behind-the-scenes negotiation between the EP and the Government, and a wonderful “harmonious working relationship”? A check-and-balance that is out of my sight is also out of my mind.

Even the 2016 constitutional amendments, which obliterated shook up the competition for this year’s Presidential race, did little to rouse me from my apathy. Chan Chun Sing’s extremely complacent and ineffectual response to Sylvia Lim’s queries infuriated me for a day, but that was about it. There is life to live, Netflix shows to watch, Presidents to elect…or not. (Who’s betting on a walkover?)

But the second constitutional challenge filed by M Ravi on 22nd May has finally compelled me to enter the arena of online discussion and revive my extremely dead blog. I love a good controversy. I am also heartened by all the Singaporeans cheering M Ravi on.

Unfortunately, I doubt M Ravi’s constitutional challenge will be able to make a lasting legal point…even if it makes an important political one. 

Summary of M Ravi’s reasons

From his Facebook page:

  • The Reserved Election mechanism violates Article 12 (right to equality) because it is a form of racial discrimination
  • Additionally, the Reserved Election mechanism runs counter to the Basic Structure doctrine because it racially discriminates and deprives citizens of their fundamental equal right to stand for public office

Argument 1: Violation of Article 12

Article 12 of the Constitution is as follows:

12.—(1)  All persons are equal before the law and entitled to the equal protection of the law.
(2)  Except as expressly authorised by this Constitution, there shall be no discrimination against citizens of Singapore on the ground only of religion, race, descent or place of birth in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment [emphasis added]

M Ravi’s first argument can be disposed of briefly. The Government has preempted any concern that the amendment violates Article 12 by adding in a nifty little savings clause under the new Article 19B(5):

No provision of any law made pursuant to this Article is invalid on the ground of inconsistency with Article 12 or is considered to be a differentiating measure under Article 78″.

This is similar to how the Government snuck in the GRC (see Article 39A(3)). And yes, I know it’s so irritating because the argument fails on a mere technicality, but that’s what you get when the ruling party holds >90% of the seats.

Parliament can easily fulfil amendment procedures, or even amend the amendment procedures (as with the new entrenchment framework in Articles 5A, 5B and 5C) if it wishes to aggressively amend the Constitution. Note that there is no express constitutional provision “strong” enough to prohibit Parliament from doing crazy things like fundamentally breaching the separation of powers by fusing State organs. The provisions establishing the division of powers among the Legislature, Executive and Judiciary can be altered with a ⅔ majority. *gasp*

This is why the applicability of the Basic Structure doctrine is crucial to M Ravi’s argument.

Argument 2: Violation of the Basic Structure doctrine 

I’m going to call it “BS” doctrine for short 😉

a) What is the BS doctrine? 

The BS doctrine is humanity’s last hope  particularly valuable in Singapore’s context of a strong Parliamentary majority because it allows the Judiciary to safeguard Constitutional Supremacy by implying limitations on Parliament’s power to amend the constitution. Amendments that contradict the constitution’s essential features would be struck down: Kesavananda Bharati v State of Kerala (an Indian case). In other words, Parliament may be following law-enactment procedures to the letter, and there is nothing technically legally wrong with the law, but the law that it enacts may still be “wrong” if it goes against something intrinsic in the Constitution. The doctrine looks at the substance of the law and whether it transgresses our (fluffy) notions of what a Constitution should achieve.

i) Why must a feature be “essential” (a high threshold) anyway?

This is because judges try their best to respect the separation of powers (role of judges: interpret the law, v.s role of Parliament: make law) and striking down a law would be considered an encroachment on Parliament’s powers. You can characterize the BS doctrine as a “radical” doctrine that imbues judges with a lot of power, and can imagine how it could be abused by rogue judges who don’t know their place. Singapore’s courts are very afraid of this, as I’ll go into later.

ii) More importantly, what constitutional feature will be considered “essential” enough that the judges will ride in on their white stallions and save the day? 

Recent judicial pronouncements, even if only obiter dicta, indicate acceptance that certain features form the Constitution’s basic structure. Drawing on Mohammad Faizal bin Sabtu v PP and Vellama d/o Marie Muthu v AG, the Court of Appeal in Yong Vui Kong v PP identified separation of powers and the right to vote. However, these two features should not be considered an exhaustive list – the Court was open to considering other features if they were similarly “fundamental and essential to the political system”.

b) Can M Ravi use the BS doctrine as a back up argument? 

In my humble legal analysis, no. This depends on the following sub-questions:

i) Can racial discrimination be considered a “basic feature”? 

Honestly, I am not persuaded that the Reserved Election mechanism discriminates against Singaporeans racially. It’s a form of affirmative action that is ultimately aimed at promoting multi-racialism and the equality of races by ensuring that people of all races can assume the highest office in the land. Few would consider the GRC system to be a “pure” form of racial discrimination. And the question of whether we should have affirmative action of this kind is a policy question, not a legal one.

But that aside, neither racial discrimination nor multi-racialism (if you frame it my way) should be considered a “basic feature”. As mentioned earlier, there is a high threshold that must be met – it must be “fundamental and essential to the political system”. I do not doubt that the various constitutional provisions that enshrine the special position of Malays and secure minority representation (GRC system, and now the EP), are informed by the belief that multi-racialism is integral to Singapore’s “cohesion and survival” as a nation. You could argue that multi-racialism is “fundamental” to the organization of the political system because it ensures the stability and continuity of the political system.

However, multi-racialism ultimately does not satisfy the criteria in Yong Vui Kong. At its core, a constitution “sets out how political power is organized and divided between the organs of State”. The Court endorsed the view that fundamental liberties should be excluded because they “relate to the rights and liberties of the citizens”, rather than to the core function of the constitution as a “power defining” and “power-limiting” tool. This narrow view of the basic structure excludes multi-racialism, which regulates power-sharing between ethnic communities rather than state powers. The importance of multi-racialism as a feature is rooted in Singapore’s social reality, rather than the nature of the Constitution itself. 

ii) Even assuming that racial discrimination is a “basic feature”, does the full Kesavananda basic structure doctrine apply in Singapore?

Although the Singapore courts have recognized that there are certain basic features such as the right to vote and the separation of powers, this does not mean that they recognize the full (extremely radical) legal principle in Kesavananda that the Judiciary can strike down a law that violates these basic features. The position in Singapore is unsettled at the moment. The High Court in Teo Soh Lung v MHA adopted a textualist approach and rejected the doctrine, but that decision was in 1989, at the height of Marxist paranoia. It is clear that the tenor of the Judiciary has shifted somewhat since then. No recent Court of Appeal has ruled on this matter – Yong Vui Kong declined to express a view. Some academics (the optimistic ones!) have posited that a future court will rule differently, but being a realist, I really doubt the doctrine will be recognized in Singapore.

The pitfall of constitutional rigidity

One key criticism is that the BS doctrine hampers much-needed changes to the political system because it assumes that there are certain features of the constitution that are permanentThis view holds considerable sway in Singapore. Teo Soh Lung endorsed Ray J’s dissenting judgment in Kesavananda that “unforeseen problems may emerge” and “public opinion may shift from one philosophy of government to another”. Two decades later, the Government’s reluctance to operationalize the old EP-entrenchment framework for more than 20 years (Article 5(2A)), coupled with the tenor of the 2016 discussions, continue to illustrate a strong preference for constitutional flexibility. The analogy of “stretching and occasionally resoling” shoes remains a Government favorite and reflects the view that significant changes may be needed for the Constitution to continue benefiting an evolving society.

Naysayers say that the application of the doctrine would have prevented the introduction of major changes such as the Non-Constituency and Nominated Members of Parliament schemes, GRCs and the EP, which all serve important societal goals. Others argue that the EP did not alter the basic structure and nothing short of the removal of the Presidency would suffice. This diversity in views strengthens Ray J’s argument that drawing the line between “essential” or “non-essential” features is an “imponderable” task that is left to the subjectivity of each bench. The doctrine creates undesirable uncertainty over the constitutionality of these institutions.

Counter-Majoritarianism

In seeking to protect the integrity of the Constitution, the doctrine allows the Judiciary to strike down laws made by Parliament, thus giving rise to judicial supremacy. As Parliament members are elected representatives of the people, and supposedly reflect democratic will, judicial supremacy is counter-majoritarian. This argument is highly persuasive in the Singapore context.

First, the Singapore courts are conscious of their insufficient democratic mandate, and thus adopt a deferential attitude towards Parliament. The Court of Appeal in Lim Meng Suang v AG has cautioned against the “usurpation of the legislative function” by an unelected Judiciary.

Second, the courts prefer to occupy a passive and non-adversarial role. Aggressive court intervention is a last-resort and the onus is on political figures to self-regulate, with the electorate taking on an important role in holding Parliament accountable. This is supported by then Chan CJ’s observation in an extra-judicial lecture that the courts adopt a “green light” model, where good governance is sought through the “political process and public avenues” rather than “redress[ing] bad government” through the courts. Bearing this context in mind, the courts are unlikely to recognize the doctrine as it would tilt the balance of power in the Judiciary’s favor – a situation they have consistently avoided.

iii) What are the alternatives?

The effect of rejecting the doctrine in a one-party system is the seemingly unlimited power of Parliament to fundamentally alter the Constitution. However, Parliament is still subject to political limits in the form of the electorate’s disenchantment. A Parliament that arbitrarily changes the Constitution incurs grave political risks and lends credence to the Opposition.

As the Wee Chong Jin Commission Report noted, the survival of parliamentary democracy ultimately lies in the “hands of the people of Singapore by their choice of their representatives”. How powerful these political limits are depends on each one of us. Do we want to continue supporting a ruling party that has 90% of the seats? Do we find the ownself-check-ownself philosophy compelling?

Thanks for reading! Watch out for my next post on how else we can challenge the amendments to the EP – an alternative to the M Ravi route. 

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