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
“The principle of stare decisis does not demand that we must follow precedents, which shipwreck justice.”
In conclusion this is why tyranny and federalism, separation of power, checks and balances and big and small states all mean that they are important to know also the branches are a big part especially in the separation of
The absence of a codified constitution raises numerous questions. The main one being,
It can be argued that event without the “hereditary orders,” a distinction of interests can be found and were discussed in several papers. Interests will vary from state to state, from the rural farmers to the businessmen of the cities. These distinctions were discussed in Federalist No. 10 as factions. While the hierarchy of such interests is not related to nobility as found in England, a faction is defined here as a number of citizens who are united and motivated by common interests adverse to the rights of other citizens or to the interests of the community. It is proposed that there are only two methods of curing the adverse effects of factions: by removing its causes or by controlling its effects. The intent of the proposed system of checks and balances seeks to cure selfish interest by the latter. Power to any one person or branch would be limited by the other branches, preventing any person, branch, or faction from gaining an excess amount of power and leverage towards their own interests rather than the collective interests of the people.
The logical consequence of the application of the Stromberg case ruling to the Terminiello case was the reversal of the conviction. The Supreme Court did not challenge the constitutionality of the Chicago ordinance, but stated that in this case, free speech can not be denied to anyone even if such speech is considered to be provocative and unpopular in nature. The specifics of the Terminiello conviction were not explicit and, therefore, impenetrable by the inquiries of the Supreme Court. Without exact articulation of the conviction the Court could not dissect the verdict into parts that were applicable to Terminiello's charge and conviction.
Gunther, G. (1991). Constitutional Law. Twelfth Edition. New York: The Foundation Press, Inc. pp. 1154-1161.
After a hard won bitter revolution, America was given the opportunity to create its own government. The Founding Fathers did not want to create another monarchy, but instead a republic, or representative government, was formed. The Constitution was organized to establish laws for government and people. The Founding Father’s political theory was antithesis to American democratic faith. The philosophy of the founding fathers is analyzed including the idea of stability in government, republicanism, and the nature of man.
What this term means is that within the government of the United States, each branch of government, whether judicial, executive, or legislative, has certain roles they fulfill in governmental proceedings, and as a result, each branch is limited from becoming too powerful. Why this particular addition is necessary to the Constitution is an extension of the founding fathers goal in preventing a concentration of power within any one branch of government. Each branch of government has its powers and its limitations to facilitate not only the functioning of the government but its success. In fact, it is the separation of powers within the government that allows it to function despite the powers that each branch holds. “Separation of powers serves several goals. Separation prevents concentration of power (seen as the root of tyranny) and provides each branch with weapons to fight off encroachment by the other two branches” (Separation of Powers, n.d, para.
...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.
...t that, invariably in the three decisions that gave states more rights, a need to curb national government supremacy was a more important factor than the Tenth Amendment. Indeed, the dual federalist approach was not the major factor either because the three aforementioned cases were all decided more as a response to the expansion of national supremacy than a desire to exert states rights. The Supreme Court has not always been capable of following the correct interpretation of the Constitution because of the effects of prior cases and political influences. In order to do so in the future, the Supreme Court need only remember that the constitution was meant to-- enhance national government power, the national government is supreme when its laws are made in the pursuance of the Constitution, and the Tenth Amendment gives the states a passive and not aggressive power.
The American concept of federalism implies balance. Consequently, a system of checks and balances created by a division of powers among the executive, legislative, and judicial branches of the national gover...
"The applicability of doctrine of proportionality even in administrative law sphere is yet a debatable issue."
For years, countries have had different legislatures bicameral and unicameral. The features of each legislatures are distinct from one another. It even accounts to various vices and virtues. Both legislatures exist in various countries in the world. The reason to which varies in each place. Legislatures are essential for a society to perform politically well. However, the political structure of every nations varies thus, there exist no simple generalization. The structural arrangements of different legislatures are distinct in relation to their number of chambers available. (Danziger, J. N. (1996))
One of the biggest threats to a thriving country is a tyrannical government. To prevent this, the Founders declared that the power of the government must be separated. This principle, the Separation of Powers, states that, to prevent tyranny, one governmental branch cannot have supremacy over the country. The power must be divided among three branches. These are the executive, judicial, and legislative branches. The Separation of Powers is of equal importance now as when the Constitution was written because it prevents tyranny.