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
Originalism, an orthodox principle of legal interpretation, focuses on interpretation pursuant to the original understanding of constitutional words . This incorporates arguments from the ‘text, context, purpose and structure of the constitution’. The originalist method of constitutional in...
Federalist no. 78 is persistent in its sort of justifications of the Constitutions vagueness. The letter claims that the judiciary branch is of the least danger of t...
Gunther, G. (1991). Constitutional Law. Twelfth Edition. New York: The Foundation Press, Inc. pp. 1154-1161.
According to John Acton in 1887, “Absolute power corrupts absolutely”, meaning that if unlimited power is given to any one person, they can be corrupted by it. The framers of the Constitution recognized this and built in a plan to prevent this from happening and a result of this, the Constitution spreads power equally between the three branches of government: The Executive, Legislative and Judicial branches. These built-in checks and balances are very important to our government, because they keep one branch from gaining too much power over another. This balance of power prevents any branch of our government from being “corrupted absolutely”. This thesis will argue that this part of the Constitution is as important today as it was when first
More and more people have grown disillusioned with the Supreme Court in the last thirty years than ever before. We have seen more of a shift from decisions aimed at bettering the lives of the people, to politically driven decisions with only the elite, profiting. This fact highlights the court’s need to gradually move toward a modern and evolutionary interpretations of the Constitution, rather than trying to render “new world” decisions, from an “old world” perspective. In simpler words, the nine residents of One, First Street need to embrace the idea of a Living Constitution. A Living Constitution simply refers to a Constitution which evolves as time passes by, whether it be in the form of amendments, or interpretation. I believe the main criticism, from both Robert Jackson and James Burns is that as time evolves, the Supreme Court has an obligation to interpret the
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.
There have been many complaints and theories of how the Supreme Court has a tendency to act as a "supra-legislature" (Woll 153). It is proposed that the Supreme Court takes the
Although the original constitution was designed to endure and last, ruling with the “original intent” would not be ideal due
...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.
In conclusion, equivalent contentions on the constitution being static or adaptable demonstrates that certain parts of looking at the constitution shows alternate points of view on whether it adjusts to the needs of the Australian public. Subsequently, the general population ought to be mindful of any alterations made or to be made to guarantee the significance and needs of the nation is fulfilled.
Spaeth, Harold J. and Edward Conrad Smith. The Constitution of the United States, 13th ed. New York: HarperCollins Publishers, 1991 (paper). ISBN 0064671054.
Reece H., ‘The paramountcy principle Consensus or construct?’ [1996] 49 Current Legal Problems p. 267-304
While an uncodified constitution has the advantages of dynamic, adaptability and flexibility to meet the ever-changing needs of the society , it poses much difficulty in pinpointing the ultimate constitutional principle that should provide legitimacy in the British constitution. This results in a battle between two broad schools of thought––political constitutionalism and legal constitutionalism.
1.The strict supremacy of statute over judicial decisions and a tradition of literalism in statutory interpretation, 2. Where no legislation exists, the courts are bound by the doctrine of precedent in accordance with a strict hierarchy of judicial authority, 3. In the absence of a relevant precedent, the judges will be guided by legal principle and reasoning by analogy, and 4. There is clear way of distinguishing the ratio of a case…
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