Legal Essay
The basic structure doctrine is a crucial lynchpin to the fundamental rights under the Singapore Constitution. Discuss.
This essay will explain the basic structure doctrine and how it works under the Singapore Constitution. It will also elaborate on how the Constitution protects the minority and how a basic structure doctrine can affect the rights of the minority. An evaluation of the doctrine will be included to support my argument of the basic structure doctrine being a crucial lynchpin to the fundamental rights under the Singapore Constitution. There will also be a discussion on whether or not Singapore should inherit the basic structure doctrine later on in the essay.
To start off, the Constitution has been defined as the collection
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Although Singapore did not fully adopt the Basic Structure Doctrine, they did inherit the Westminster constitutional model from the British during its colonial years. This model includes the separation of powers between the three organs of state in governing Singapore.
First diction of the doctrine in Singapore met rejection by the High Court. They felt that it was not applicable to the Singapore Constitution.
In India, the basic structure doctrine triumphed in the case of Kesavananda Bharati v. State of Kerala. Although Justice Hans Raj Khanna won by a narrow margin, the basic structure doctrine has since gained extensive acceptance due to subsequent cases and judgments. In Indira Nehru Gandhi v. Raj Narain and Minerva Mills v. Union of India, Constitutional Benches of the Supreme Court used the basic structure doctrine to strike down the 39th Amendment and parts of the 42nd Amendment, and Indian democracy was on its way to reclamation. (Wikipedia, 2014)
In Singapore, following the case of Teo Soh Lung v Minister for Home Affairs, Justice Frederick Arthur Chua (Chua J) rejected the doctrine. He mentioned that it was not applicable to the Singapore Constitution. Singapore is different from India thus the way the constitutions function differs as
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The basic structure doctrine may not necessarily expand the scope of judicial review. A proper understanding of the interplay between the Legality Principle and separation of powers may instead lead to judicial restraint in appropriate cases. Judicial excursions into the basic structure may be seen as an attack on representative Government. A Court that “strikes down” a constitutional amendment does so in the face of a two-thirds majority in Parliament. To illustrate, 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. The Indian experience has taught us that the invocation of the basic structure doctrine is not without controversy.
Few Courts around the world have had the opportunity to squarely analyse the basic structure doctrine as a matter of ratio decidendi. Even fewer Courts have applied the doctrine to strike down a constitutional
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1. Does the Supreme Court have the responsibility to interpret the constitutionality of a case, that is brought up for review as it is presented at its face value, or should it consider the ultimate impact that it could have ...
Gunther, G. (1991). Constitutional Law. Twelfth Edition. New York: The Foundation Press, Inc. pp. 1154-1161.
...aw in the US and Australia where the doctrine can be used to found a cause of action to remedy the non-performance of a promise unsupported by consideration. In the UK however, it is a means where contractual rights may be suspended, but not by which new rights can be formed. In the US, where the doctrine can be used as a cause of action and has been used in multiple cases, commentators have claimed that the doctrine is a ‘flexible means of achieving fairness’ and ‘cannot be reduced to a precise formula or series of tests’ .
Newman, Roger K., ed. The Constitution and Its Amendments. Vol. 3. New York: Macmillan Reference, 1999. Print.
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