Ravi s/o Madasamy v Attorney-General and other matters [2017] SGHC 163

Introduction

This was the plaintiff’s application by way of Originating Summons No 548 of 2017 (“the OS”), seeking to challenge the Elected Presidency Scheme (“EPS”). In its amended form, the OS stated that the requirements as to the qualifications of the President under Art 19 of the Constitution of the Republic of Singapore (1999 Rev Ed) (“Constitution”), as well as recent amendments to introduce a framework for reserved elections under Art 19B of the Constitution, were inconsistent with Art 12 of the Constitution.

The OS was filed on 22 May 2017 and named the Government (as represented by the Attorney-General) as the defendant. A hearing was scheduled on an expedited basis on 15 June 2017 as both parties agreed that there was some urgency for the OS to be heard. Indeed, I was given to understand that the sitting President’s term of office would expire on 31 August 2017 and that the writ for the upcoming Presidential election would be issued shortly. Having heard the parties, I dismissed the OS. I now set out the grounds for my decision.

Preliminary applications

The plaintiff, a former practising lawyer, filed the OS in his personal capacity. He styled himself as a “public interest litigator”. Before the hearing of the OS proper, the plaintiff made three preliminary applications. The first was an oral application for the proceedings to be heard in open court. The second, Summons No 2619 of 2017 (“SUM 2619/2017”), was an application for the Deputy Attorney-General, Mr Hri Kumar Nair SC (“Mr Kumar”), to be disqualified from having conduct of the proceedings on behalf of the Government. The third, Summons No 2710 of 2017 (“SUM 2710/2017”), was an application to amend the OS and to add new prayers to the same. I shall briefly address these preliminary applications seriatim.

The oral application for proceedings to be heard in open court

I start with the plaintiff’s oral application for the proceedings to be heard in open court. The plaintiff contended that this was a constitutional hearing since the OS affected the “fundamental rights of all citizens”. He likened it to an application under O 53 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“Rules of Court”) for judicial review, which would be heard in open court (subject to leave being granted).

Mr Kumar, who appeared on behalf of the defendant, objected and pointed out that O 28 r 2 of the Rules of Court would govern the proceedings. This rule provides as follows:

Mr Kumar submitted that there was no exception contemplated for “constitutional” matters and that there was no special reason why an exception should be made in the present case. Moreover, Mr Kumar highlighted that the nature of the applications before the court involved scandalous allegations and remarks which were political attacks. He submitted that the plaintiff was motivated by a personal agenda to seek a hearing in open court. That agenda was already laid bare by his posts on Facebook, where he had sought crowdfunding for his litigation.

For a while, the plaintiff maintained that matters of public importance going to the heart of the Constitution were being surfaced by him in the public interest. Somewhat abruptly, he then changed course and made an oral application to “convert” the OS to an application under O 53 of the Rules of Court for judicial review. He stated that he intended to seek a prohibitory order restraining the Prime Minister from proceeding with the upcoming Presidential election. Mr Kumar pointed out that this was essentially an attempt to avoid having to obtain leave to commence proceedings under O 53 of the Rules of Court and that, in any case, very different substantive reliefs were being sought.

I dismissed the plaintiff’s oral application for the proceedings to be heard in open court and directed that the hearing of the OS before me continue in chambers as scheduled by the registry. I saw no reason to depart from the general rule in O 28 r 2 of the Rules of Court. Moreover, I saw no basis to allow a “conversion” of the OS to an application under O 53 of the Rules of Court. This was a barefaced attempt by the plaintiff to ignore and circumvent the requirement for leave under O 53 of the Rules of Court while hoping to have the hearing conducted in open court to suit his own purposes.

The application to disqualify Mr Kumar (SUM 2619/2017)

In SUM 2619/2017, the plaintiff applied for Mr Kumar to be disqualified from having conduct of the proceedings on behalf of the Government. This was on the ground that Mr Kumar, being a former People’s Action Party Member of Parliament (“PAP MP”) from 2011 to 2015, was partisan and in a position of conflict. The relevant portion of the application stated as follows:

The plaintiff contended that Mr Kumar would not be able to fairly discharge his duties to the public as well as the Government. The plaintiff then went on at some length on the difficulty that various key appointment holders supposedly faced on account of the Prime Minister having the power and discretion to decide on such appointments, including the appointment and removal of judges and the Attorney-General. He also alluded to the importance of public perception and natural justice.

Mr Kumar responded in these terms: he was appearing as counsel for the Government and it would be for the Government to complain if he was thought to be in a position of conflict given his former role as a PAP MP and his present role in advising and representing the Government. In any event, there was no case authority which established that public perception was a relevant consideration in determining whether he ought to be disqualified.

I dismissed SUM 2619/2017 as I saw no basis in support of the application other than mere speculation and conjecture. I saw no reason why Mr Kumar would be unable to conduct his case fairly and objectively without conflict, having regard to the interests of the public and the Government.

The application to amend the OS (SUM 2710/2017)

The third, and final, preliminary application was SUM 2710/2017. This was filed by the plaintiff on 13 June 2017, just two days before the scheduled hearing of the OS on 15 June 2017. However, before I could proceed to hear the parties on the merits of the application, the plaintiff peremptorily announced that he would appeal against my dismissal of SUM 2619/2017. He also mentioned other possible applications he was planning to make, such as seeking a declaration that the Judiciary was “not capable of being independent” since the Prime Minister had complete control over all key appointments. The plaintiff then asserted that the matter should not proceed any further until his intended application for a declaratory order was dealt with.

This was a rather curious and unexpected turn of events but it eventually transpired that the plaintiff was trying to seek an adjournment to read the submissions and authorities tendered by the defendant. He explained that he suffered from bipolar disorder, was a disabled person and had not slept the night before. If an adjournment was not allowed, he would have to go to see his doctor and obtain a medical certificate. He complained that he would be hampered in conducting his case if an adjournment was not granted.

Mr Kumar objected to an adjournment. He pointed out that the plaintiff had agreed that the hearing should take place on an expedited basis, given that the sitting President’s term of office would expire on 31 August 2017 and that the writ for the upcoming Presidential election would be issued shortly. The plaintiff had informed the registry that he would be willing to take any hearing date before 20 June 2017. As such, the hearing date was well within his contemplation. Mr Kumar also highlighted that the plaintiff had failed to comply with the registry’s timelines for the filing of his submissions. In any event, the materials and authorities tendered by the defendant would not be new or surprising to the plaintiff since they related to the basic structure doctrine (arising from the decision of the Indian Supreme Court in Kesavananda Bharati v State of Kerala AIR 1973 SC 1461 (“Kesavananda”)) and the ambit of various constitutional provisions. I noted that these were matters the plaintiff himself had raised in his affidavit filed and affirmed on 22 May 2017 in support of the OS (“Supporting Affidavit”) and his skeletal arguments.

The plaintiff emphasised that he was a constitutional law expert. Mr Kumar was quick on the uptake and responded that all the relevant cases should then be familiar to him and pose no difficulty or challenge. He submitted that the application for an adjournment was sought only to delay the proceedings and to give the plaintiff more time to consider making other possible applications. It was brought to my attention that the plaintiff had made a Facebook post the night before the hearing which plainly belied his claims of being inadequately prepared and tired. In this post, the plaintiff proclaimed to all and sundry that the “guns [were] blazing”, suggesting that he was ready and eager to put forward his arguments in court the next day. The plaintiff also appeared exuberant and confident, given his broadcasted plan of “[g]oing to club street for champs [ie, champagne] and a cigar”.

The plaintiff did not dispute making the Facebook post. His further response was simply that he had just texted his doctor. Presumably, if he had done so, this must have taken place in the midst of Mr Kumar’s submissions. I did not seek to verify whether such text exchanges with his doctor were indeed taking place, although I had observed the plaintiff to be checking his mobile phone regularly during the hearing. I had warned him that while he could conduct research online if he needed to do so, he was not to post anything on social media in the course of the hearing or to record the proceedings. The plaintiff claimed that his doctor had informed him to proceed to see him.

I found the plaintiff’s efforts to procure an adjournment patently contrived and unconvincing. He only had himself to blame if he was truly inadequately prepared and tired. Moreover, the defendant had complied with the registry’s prescribed timelines for the filing of submissions. All said, the plaintiff’s complaints rang hollow and were also ironic insofar as he had himself failed to comply with the timelines for the filing of his submissions. I should add that for the entire time I had heard submissions up until this point (which was approximately 70 minutes into the hearing), the plaintiff’s energies and enthusiasm in putting forth his case certainly did not appear to wane in any way. For these reasons, I did not allow the adjournment sought by the plaintiff.

Returning to SUM 2710/2017 proper, it is apposite at this juncture to set out the terms of the OS as it originally stood:

In SUM 2710/2017, the plaintiff sought the following prayers:

When I proceeded to deal with SUM 2710/2017, this was only in relation to prayers 1(c) to 1(g) as the defendant did not object to the amendments sought by way of prayers 1(a) and 1(b). The plaintiff went on at some length with a diatribe outlining his views on Singapore politics and policies, such as how the 2016 amendments to the Constitution were politically motivated to keep Mr Tan Cheng Bock out of the running as a potential candidate for the Presidency. Tangentially, the plaintiff then pointed to supposedly racially-discriminatory pronouncements made by former Prime Minister Mr Lee Kuan Yew in 1990, which resulted in Mr S Dhanabalan being discriminated against so that Mr Goh Chok Tong would be the Prime Minister succeeding Mr Lee Kuan Yew. He associated this with a regime of “apartheid” based on “eugenics”. Hence, he argued that the appointments of Mr Goh Chok Tong and Mr Lee Hsien Loong as Prime Ministers thereafter were made in contravention of Art 12 of the Constitution. Finally, the plaintiff maintained that Deputy Prime Minister Mr Tharman Shanmugaratnam and Mr S Dhanabalan had failed to assert their constitutional rights and failed in their ministerial responsibility in not coming forward to uphold Art 12 of the Constitution.

Mr Kumar pointed out, firstly, that the application to amend the OS was filed late in breach of the timelines prescribed by the registry. On the substantive aspects, Mr Kumar submitted that even if the amendments in prayers 1(c) to 1(g) were allowed, the application was bound to fail. The submissions mirrored those being made in the OS to some extent, including an argument that the plaintiff had no standing to make the application in prayer 1(c): Mr Tan Cheng Bock, a former PAP MP and Presidential election candidate, was not himself mounting a legal challenge on the same basis. With respect to prayers 1(d) to 1(g), these would also introduce matters that had nothing to do with the terms of the OS in its original form, which centred on the EPS. As the causes of action were unrelated, it would not be appropriate to add them, and it would be prejudicial to the defendant if this were to be allowed. Moreover, the appointments of Mr Goh Chok Tong and Mr Lee Hsien Loong as Prime Ministers were political in nature and were not justiciable matters. In respect of Mr Tharman Shanmugaratnam and Mr S Dhanabalan, no constitutional rights had been violated and any challenge was legally unsustainable. In addition, it was contended that the plaintiff had no factual basis for prayers 1(c) to 1(g).

I accepted Mr Kumar’s submissions and allowed the plaintiff leave to amend the OS only insofar as the original prayers 1 and 2 were to stand amended in the terms set out in prayers 1(a) and 1(b) of SUM 2710/2017. Prayers 1(c) to 1(g) of SUM 2710/2017, which sought to add new prayers, were disallowed. The substance of the OS thus remained much the same as what was originally filed.

The OS

Turning now to the substantive aspects of the OS (in its amended form), the two prayers framed by the plaintiff, to recapitulate, were in the following terms:

By the first prayer, the plaintiff essentially sought to impugn Art 19 of the Constitution, which sets out the qualifications of the President, on the basis of inconsistency with Art 12 of the Constitution. By the second prayer, the plaintiff essentially sought to impugn Art 19B of the Constitution, which sets out the framework for reserved elections, on the basis of inconsistency with Art 12(2) of the Constitution. The plaintiff did not file any further affidavit in support of the OS as amended. His only affidavit before me was therefore the Supporting Affidavit. In it, the plaintiff also referred to the basic structure doctrine.

An overview of the relevant constitutional provisions is perhaps apposite at this point. Art 12 of the Constitution provides as follows:

As for Art 19 of the Constitution, this was originally inserted by the Constitution of the Republic of Singapore (Amendment) Act 1991 (Act 5 of 1991). Further amendments were made pursuant to the Constitution of the Republic of Singapore (Amendment) Act 2016 (Act 28 of 2016) (“2016 Constitution Amendment Act”). In its present form, Art 19 of the Constitution reads as follows:

Finally, Art 19B of the Constitution was similarly introduced by the 2016 Constitution Amendment Act. It states as follows:

Summary of the parties’ submissions

Summary of the plaintiff’s submissions

Much of the plaintiff’s submissions were found in the Supporting Affidavit. It is worth setting out the contents of the Supporting Affidavit at some length:

The plaintiff tendered skeletal arguments during the hearing, in which he outlined his arguments. He began by stating that his application entailed addressing “the question of our inalienable right to equality enshrined under Article 12 of the Constitution, namely Singapore citizen’s equal right to stand for elections regardless of class, status, position of institutional power in society or wealth” and “regardless of our colour or variety of speech or belief, namely, race, language or religion”. I reproduce below the following paragraphs of the plaintiff’s skeletal arguments:

The plaintiff then went on to quote an article by Asst Prof Swati Jhaveri in its entirety. The plaintiff did not state the provenance of this article, but I gathered that it was a blog post that was downloaded and printed off the Internet (Swati Jhaveri, “Recent Judicial Comments on the Basic Structure of the Constitution” (20 April 2016) (https://singaporepubliclaw.com/2016/04/20/ recent-judicial-comments-on-the-basic-structure-of-the-constitution/)). The plaintiff then went on to assert, without further elaboration, that “Basic Feature Doctrine was also recognised by the Malaysian courts recently”.

During the hearing, the plaintiff tendered a second article written by Calvin Liang and Sarah Shi which was published in the Singapore Law Gazette (Calvin Liang & Sarah Shi, “The Constitution of Our Constitution: A Vindication of the Basic Structure Doctrine” (http://www.lawgazette.com.sg/ 2014-08/1104.htm) (“The Constitution of Our Constitution”)). Relying on both articles, and also on Chan Sek Keong CJ’s paper based on his lecture delivered at the Rule of Law Symposium 2012 (Chan Sek Keong, “The Courts and the ‘Rule of Law’ in Singapore” [2012] Sing JLS 209 (“The Courts and the ‘Rule of Law’ in Singapore”)), the plaintiff asserted that the basic structure doctrine was central to a framework of constitutional democracy and was part of Singapore law. The basic structure doctrine, as formulated by the Indian Supreme Court in Kesavananda, operates to invalidate constitutional amendments in violation of the “basic structure” of the Constitution. In the present case, it would therefore have operated to prevent attempts to abrogate or amend the non-derogable and fundamentally-guaranteed rights in the Constitution. The plaintiff appeared to contend that this would include the right to equal protection in Art 12 of the Constitution, flowing from which the right to vote and the right to stand for elections ought to be guaranteed as fundamental and inalienable rights for all citizens.

The plaintiff further contended that the three recent decisions of the Court of Appeal cited in The Constitution of Our Constitution supported his submission that the basic structure doctrine was recognised in Singapore, namely Yong Vui Kong v Attorney-General [2011] 2 SLR 1189 (“Yong Vui Kong 2011”), Tan Eng Hong v Attorney-General [2012] 4 SLR 476 (“Tan Eng Hong”) and Vellama d/o Marie Muthu v Attorney-General [2013] 4 SLR 1 (“Vellama”). He had acted as counsel in all three cases. He maintained that the notion of a constantly-evolving Constitution could not be right as the Constitution could not simply be changed willy-nilly. In his view, the less one changed the Constitution, the more stable it was.

In his reply submissions, the plaintiff disputed Mr Kumar’s point that he had no standing to bring the application. Relying on Tan Eng Hong, he submitted that it was not necessary for him to assert a private right or show that he had suffered special damage. He maintained that he had a real and genuine interest in the subject-matter. Notwithstanding that he had no personal interest in politics or in becoming a candidate for the Presidency, even as a bystander or “busybody”, he could come to court to seek to correct a “flagrant abuse by the State”.

The plaintiff further claimed that his challenge was premised on Art 12 of the Constitution as the appointment of the President was made by the Prime Minister on the ground of race and the former came under the “puppetry” of the latter. Finally, the plaintiff asserted that wool was being pulled over the eyes of the electorate. He maintained that Art 19B of the Constitution excluded the possibility of other minorities (such as Eurasians, Sri Lankans and Sikhs) being considered within the reserved elections framework, and that a race issue “suddenly” emerged overnight.

Summary of the defendant’s submissions

The defendant’s written submissions proceeded on certain assumptions as to the basis for the plaintiff’s application, given that it was unclear what was being sought in the OS. Aside from arguing that the plaintiff had no standing to bring the application, the defendant’s primary arguments were as follows. First, it was submitted that the basic structure doctrine was not recognised in Singapore and was incompatible with our constitutional framework. Next, it was submitted that there was no unqualified constitutional right to stand for President. Lastly, it was submitted that the reserved elections framework (introduced by Art 19B of the Constitution) was not racially discriminatory.

In his oral submissions, Mr Kumar made the preliminary point that the plaintiff had no standing as it was not suggested that any of his private rights had been violated. Mr Kumar submitted that the plaintiff’s own rights under Art 12 of the Constitution had not been violated, since the plaintiff had disavowed any interest in running for the Presidency. In addition, the plaintiff had not demonstrated any exceptionally grave or widespread illegality or an egregious breach of law that might afford him standing to maintain the action.

In Teo Soh Lung v Minister for Home Affairs and others [1989] 1 SLR(R) 461 (“Teo Soh Lung”), F A Chua J rejected the application of the basic structure doctrine in Singapore, and Mr Kumar submitted that this remained good law and ought to be followed. A key aspect of Chua J’s reasoning was that the basic structure doctrine, if adopted, would amount to judicial usurpation of the legislative function. Mr Kumar accepted that it could be broadly postulated that there was a “basic structure” to the Constitution in the sense that the Constitution rested on overarching principles such as the rule of law and the separation of powers. However, the basic structure doctrine went further to prevent Parliament from amending certain “basic features” of the Constitution, even if all prescribed procedures for amendment had been lawfully complied with. He added there had been no universal acceptance of the basic structure doctrine, which was, in any event, controversial.

Mr Kumar contended that the basic structure doctrine would not apply to the EPS. In particular, it was pointed out that Art 368 of the Constitution of India (“the Indian Constitution”) only provided for amendment, while Art 5 of the Constitution specifically contemplated that an amendment to the Constitution included a repeal of its provisions. On the basis of an equivalent provision in the Constitution of the Democratic Socialist Republic of Sri Lanka, the Sri Lankan court had refused to adopt the basic structure doctrine.

Mr Kumar traced the legislative history to Art 5 of the Constitution which showed that the power to amend the Constitution was not substantively limited. If the basic structure doctrine were found to be applicable, it would sanction a retrograde concept which impeded progressive changes to the Constitution, including changes to remove disenfranchisement. Should it be found to apply, it could only prevent amendments which were fundamental and essential to the political system, for instance, where judicial powers were being removed by such amendments. Tracking the origins of the EPS, Mr Kumar further highlighted that, historically, there was no popularly-elected Presidency until 1991 when the Constitution was amended. This exposed the logical flaw in the plaintiff’s arguments: how could there have been a breach in 1991, when the pre-1991 position in fact did not even allow for an elected Presidency and the corresponding right to stand for elections? Art 19 of the Constitution could not be characterised as a derogation of rights when the changes enabled a more open system where a President could be elected, compared to the pre-existing system which did not allow for such.

As for the plaintiff’s contention (or supposed contention, since he was not clear) that the requirements for pre-qualification of Presidential election candidates were discriminatory and in violation of Art 12(1) of the Constitution, Mr Kumar submitted that this was unobjectionable as Art 19 of the Constitution was rationally related to the purpose of identifying qualified candidates and did not violate Art 12 of the Constitution as intelligible differentiators had been employed. It was not sufficient for the plaintiff to merely suggest that he might have a different opinion on the qualifying criteria.

Finally, Mr Kumar submitted that the recently-introduced reserved elections framework in Art 19B of the Constitution was not discriminatory or in violation of Art 12(2) of the Constitution. Art 19B of the Constitution sought to ensure multiracial representation and therefore could not be said to be racially discriminatory. In any event, the Constitution was not race-neutral and the point had been specifically considered by the Presidential Council for Minority Rights (“PCMR”). In addition, Art 152 of the Constitution expressly enjoined the Government to care for the interests of racial and religious minorities.

My decision

Standing

I address first the issue of standing. In Vellama, the Court of Appeal observed (at [34]) that the rules on standing espouse an ethos of judicial review focused on vindicating personal rights and interests through adjudication rather than determining public policy through exposition. The court went on to say that matters of public policy are the proper remit of the Executive, and decoupling judicial review from the fundamental precepts of adversarial litigation would leave the courts vulnerable to being misused as a platform for political point-scoring. In Jeyaretnam Kenneth Andrew v Attorney-General [2014] 1 SLR 345 (“Jeyaretnam”), the Court of Appeal noted (at [34]) that the rules on standing in public law are put in place in order to prevent the wastage of the court’s time and public money by the multiplicity of litigation brought by busybodies that could amount to an abuse of the legal process.

In this regard, the defendant submitted that an individual had to satisfy one of the following criteria in order to establish standing: (a) a violation of a right personal to him; (b) an interference with, or violation of, a public right which had caused him special damage which distinguished his claim from those of other potential litigants in the same class; or (c) where no correlative rights, private or public, were generated by the alleged breach of public duty, a breach of sufficient gravity such that it would be in the public interest for the courts to hear the case.

With respect to (a), the defendant relied on Tan Eng Hong, where the Court of Appeal held (at [82]) that there mere fact of citizenship in itself does not satisfy the standing requirement for constitutional challenges; an applicant must demonstrate a violation of his constitutional rights (which are personal rights, as they are held and can be vindicated by individuals on their own behalf (Tan Eng Hong at [69])) before locus standi can be granted. This will prevent “mere busybodies” whose rights are not affected from being granted standing to launch unmeritorious constitutional challenges, and it is only where a person’s rights have been or are threatened to be violated that that person ceases to be a “mere busybody”.

In the present case, I was not persuaded that the plaintiff had demonstrated any violation of a right personal to him and, specifically, of his constitutional rights under Art 12 of the Constitution. Although the OS referred to Art 12 of the Constitution, the plaintiff did not complain that his rights thereunder were being violated. To the contrary, the plaintiff had stated in a Facebook post on 22 May 2017 that he had filed the OS “in [his] capacity as an ordinary citizen of Singapore” [emphasis added] – which was precisely what did not, in and of itself, give rise to standing.

With regard to (b), the defendant relied on Vellama, where the Court of Appeal held (at [31]) that the applicant who asserts no more than a public right must demonstrate that the interference with, or violation of, such a public right has caused him “special damage”. As to the distinction between public and private rights, the Court of Appeal in Tan Eng Hong held (at [69]) that a public right is one which is held and vindicated by public authorities, whereas a private right is one which is held and vindicated by a private individual. In Vellama, the Court of Appeal elaborated on this, stating (at [32]–[33]) that:

The Court of Appeal went on to emphasise (at [33]) that if “special damage” were not to be required, it is likely that the courts will be inundated by a multiplicity of actions, some raised by mere busybodies and social gadflies, to the detriment of good public administration; the requirement is a safeguard against essentially political issues, which should be more appropriately ventilated elsewhere, being camouflaged as legal questions.

In the present case, it would appear that the plaintiff was attempting to assert a public right which he shared in common with other citizens, seeing as to how he alluded to an “equal right to stand for elections” and his professed real and genuine interest in the issue of the EPS. With respect, I saw no merit in this argument. There was no nexus between the plaintiff and the prayers sought in the OS, and it was impossible to see how he could be said to have suffered any “special damage” which distinguished his claim from those of other potential applicants in the same class.

As for (c), the defendant relied on Jeyaretnam, where the Court of Appeal opined (at [62]) that “special damage” might also possibly encompass those rare and exceptional situations where a public body has breached its public duties in such an egregious manner that the courts are satisfied that it would be in the public interest to hear it. However, the court reiterated that this is a very narrow avenue which concerns only extremely exceptional instances of very grave and serious breaches of legality. The court went on to hold (at [64]) that in the rare case where a non-correlative rights generating public duty is breached, and the breach is of sufficient gravity such that it would be in the public interest for the courts to hear the case, an applicant sans rights may be accorded locus standi as well, at the discretion of the courts. In this category of cases, there has to be “some exceptionally grave or widespread illegality” or “egregious breaches of the law” (Jeyaretnam at [60]).

In the present case, there was really nothing in the plaintiff’s submissions which disclosed any breach of sufficient gravity to make it in the public interest for the courts to hear the case, so as to confer standing on the plaintiff. Moreover, it was undisputed that Arts 19 and 19B of the Constitution were both validly enacted in accordance with the stipulated procedures. Specifically, the amendments that brought them into effect were procedurally regular and validly effected pursuant to the power to amend as set out at Art 5 of the Constitution. In the circumstances, I was of the view that the plaintiff failed to establish standing based on this criterion as well.

All things considered, the plaintiff had no standing and the OS failed at this preliminary hurdle. Adopting the language used in the cases, the plaintiff was a mere busybody and a social gadfly. He was not serious about making legal arguments. Instead, by seeking to ventilate essentially political issues which were barely camouflaged as legal questions, he was patently and unacceptably attempting to misuse the court as a platform for political point-scoring. Fundamentally, he was neither directly nor personally affected by Art 19 or Art 19B of the Constitution. The plaintiff did not seriously dispute this, notwithstanding his somewhat flippant claim that, while he did not presently have any interest in standing for the upcoming Presidential election, he might later change his mind. At the same time, there was also no discernible breach of sufficient gravity to make it in the public interest for the courts to hear the case.

For completeness, I will nevertheless proceed to set out my views on the substantive merits of the OS. I have set out the plaintiff’s submissions at some length at [29]–[35] above. The lack of clarity to the plaintiff’s precise grounds of challenge was at once both troubling and bizarre. In the end, I took the view that the most sensible thing to do was to give the plaintiff the benefit of the doubt and approach matters by taking his case at its highest. In this regard, it appeared to me that the clearest version of the plaintiff’s case was to be found in the Supporting Affidavit. Using this as a point of reference, I gathered that the plaintiff’s case, at its highest, comprised three separate grounds of challenge based on: (a) the basic structure doctrine; (b) Art 12(1) of the Constitution; and (c) Art 12(2) of the Constitution. Also, notwithstanding some references to the “right to vote” in the Supporting Affidavit and the plaintiff’s skeletal arguments, it was clear that the plaintiff was not contending that this right had been violated. Rather, as will be seen, his complaint related to the “right” to stand for public office/elections.

The basic structure doctrine

In the Supporting Affidavit, the plaintiff contended that the “basic structure” offended in this case was the “right to stand for public office”. In his skeletal arguments, the plaintiff alluded, albeit in the context of Art 12 of the Constitution, to the “equal right to stand for elections regardless of class, status, position of institutional power in society or wealth” and the “equal right to stand for elections regardless of our colour or variety of speech or belief, namely, race, language or religion”. Although not entirely clear, it appeared that, to the plaintiff, this “right to stand for public office” flowed from Art 12 of the Constitution. It was not altogether clear whether this ground of challenge was targeted at Art 19 or Art 19B of the Constitution, or both. Notwithstanding, I again took the plaintiff’s case at its highest and assumed that he was seeking to impugn both Arts 19 and 19B of the Constitution. Thus, this ground of challenge was premised on two assumptions: (a) that the basic structure doctrine applied in Singapore; and (b) that the “right to stand for public office” formed part of the “basic structure” of the Constitution.

(1) Applicability of the basic structure doctrine in Singapore

The basic structure doctrine is sometimes also referred to as the basic features doctrine. Notwithstanding that there may be valid distinctions between the two terms, neither party appeared to regard the two terms as different and I will therefore proceed on this basis in these grounds of decision.

The basic structure doctrine has its origins in the decision of the Indian Supreme Court in Kesavananda. As noted by the Court of Appeal in Yong Vui Kong v Public Prosecutor [2015] 2 SLR 1129 (“Yong Vui Kong 2015”) (at [69]), the basic structure doctrine postulates that there are certain fundamental features of a constitution that cannot be amended by Parliament. This is even if the prescribed procedures enabling amendment are adhered to. The basic structure doctrine has not received explicit judicial recognition as being part of Singapore law. To the contrary, it was rejected by Chua J in Teo Soh Lung. Chua J held (at [34], [35] and [47]) that:

When the matter went on appeal, the Court of Appeal considered it unnecessary to consider the applicability of the basic structure doctrine (Teo Soh Lung v Minister for Home Affairs and others [1990] 1 SLR(R) 347 at [44]). In Cheng Vincent v Minister for Home Affairs and others [1990] 1 SLR(R) 38, Law Kew Chai J concurred (at [32]) with Chua J’s rejection of the basic structure doctrine in Teo Soh Lung. A few points were clear. First, no Court of Appeal decision had squarely addressed the issue of whether the basic structure doctrine applied in Singapore. Second, the prevailing position taken by the High Court answered this question in the negative. Third, however, this position was not binding on me. That said, various subsequent cases and commentaries appeared to support the basic structure doctrine, and it is to these that I now turn.

In Mohammad Faizal bin Sabtu v Public Prosecutor [2012] 4 SLR 947 (“Mohammad Faizal”), Chan CJ (sitting as the High Court) held (at [11]) that “[t]he principle of separation of powers, whether conceived as a sharing or a division of sovereign power between these three organs of state, is therefore part of the basic structure of the Singapore Constitution” [emphasis added]. It appeared that Chan CJ was saying, firstly, that there is a “basic structure” to the Constitution and, secondly, that the principle of separation of powers forms part of this “basic structure”. However, Chan CJ made no reference to Kesavananda or Teo Soh Lung and it was therefore unclear if the “basic structure” he had in mind was the same as that contemplated by the basic structure doctrine. Indeed, it would appear that those cases would not have, in any event, been relevant in the context of Mohammad Faizal, which dealt with the constitutionality of certain provisions in s 33A of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed). In Kevin YL Tan, “Into the matrix: Interpreting the Westminster model constitution” in Constitutional Interpretation in Singapore: Theory and practice (Routledge, 2017) (Jaclyn L Neo ed) (“Constitutional Interpretation in Singapore”) ch 3, Prof Kevin YL Tan in fact suggested (at p 69) that Chan CJ’s reference to the “basic structure” of the Constitution was not a reference to the basic structure doctrine. Prof Tan then went on to argue (at pp 69–70) that:

In Andrew J Harding, “Does the ‘basic structure doctrine’ apply in Singapore’s Constitution? An inquiry into some fundamental constitutional premises” in Constitutional Interpretation in Singapore ch 2, Prof Andrew J Harding similarly suggested (at p 32) that Chan CJ’s reference to the Constitution’s “basic structure” in Mohammad Faizal was not a reference to the basic structure doctrine. Instead, Prof Harding characterised Chan CJ’s approach – of interpreting constitutional provisions in line with the separation of powers as an aspect of “basic structure” – as “unexceptional”. Pointedly, Prof Harding concluded (at p 44) that “[u]nder Singapore’s current constitution, it is not convincingly arguable that the basic structure doctrine applies in Singapore”.

However, in Yong Vui Kong 2015, the Court of Appeal read (at [69]) Chan CJ’s remarks in Mohammad Faizal as a reference to the basic structure doctrine. The court further stated that “[a]n example of a feature that is part of the basic structure of the Constitution is the separation of powers (as was held in Mohammad Faizal)” and that “[a]nother example is possibly the right to vote”. It then observed (at [71]) that “in order for a feature to be considered part of the basic structure of the Constitution, it must be something fundamental and essential to the political system that is established thereunder”. These points were made in the context of the constitutionality of caning. Ultimately, however, the Court of Appeal declined (at [72]) to express any view on the applicability of the basic structure doctrine in Singapore since it was not considering the validity of a constitutional amendment.

In The Courts and the ‘Rule of Law’ in Singapore, Chan CJ stated, extra-judicially (at p 223), that:

Given the subsequent reference made by Chan CJ in this paper to Kesavananda and Teo Soh Lung, it would appear that, in this instance, Chan CJ had in mind the basic structure doctrine.

In The Constitution of Our Constitution, Liang and Shi relied on the Court of Appeal’s decisions in Yong Vui Kong 2011, Tan Eng Hong and Vellama, as well as Chan CJ’s decision in Mohammad Faizal and his extra-judicial comments in The Courts and the ‘Rule of Law’ in Singapore, to argue (at para 44) that “the Singapore Constitution does possess a basic structure”, and (at para 51) that the separation of powers and what they term the “legality principle” (ie, that all power has legal limits) are “among the components of the basic structure”. Insofar as the three Court of Appeal decisions were concerned, these cases referred to neither Kesavananda nor Teo Soh Lung, and I doubted that they could be said to represent the Court of Appeal’s recognition or endorsement of the applicability of the basic structure doctrine in Singapore. What was noteworthy, however, were the following passages (at paras 38 and 46), which were endorsed in full by the Court of Appeal in Yong Vui Kong 2015 (at [71]):

I noted that the basic structure doctrine was not without its critics. As an example, the following caution sounded by Asst Prof Jaclyn L Neo in an opinion in The Straits Times (Jaclyn L Neo, “Should constitutional principles be eternal?” The Straits Times (6 October 2014)) bears repeating:

Asst Prof Neo’s call for circumspection in supporting the basic features doctrine was echoed and indeed amplified by the defendant. Citing the decision of the United States Supreme Court in Leser et al v Garnett et al 258 US 130 (1922) to demonstrate the “problematic nature” of the basic structure doctrine, the defendant emphasised that no generation had an exclusive claim on constitutional wisdom. The defendant therefore submitted that, in the context of Singapore, Parliament’s power to consciously change the Constitution through the prescribed constitutional procedure should be seen as an instrument by which each generation of Singaporeans could work out their constitutional destiny, and this power should not be curtailed by the court.

When I considered the cases and commentaries cited at [58]–[62] above, what became apparent was that any ostensible support of the basic structure doctrine was rather more minimalist and related to a “thin” conception of the same. The academic niceties are perhaps best left to be canvassed and tested in other fora. However, what seemed clear was that any perceived support for the basic structure doctrine, whether by way of dicta or extra-judicial or academic commentary, had generally taken a conservative and limited form. Prof Tan’s views (see [58] above) were paradigmatic of this approach. In this regard, Asst Prof Neo in Jaclyn L Neo, “Introduction: Judging the Singapore Constitution” in Constitutional Interpretation in Singapore rationalised (at p 13) Prof Tan’s argument as a “modest” one premised on acceptance of “the basic structure of the Westminster constitution doctrine”. Above all the nuanced distinctions, what the cases and commentaries generally agreed upon was that the basic structure doctrine did not apply in its full force in Singapore.

That said, the “thin” conception of the basic structure doctrine appeared to be no more than a broad restatement of the truism that the Constitution rests on an overarching principled framework embracing the precepts of the rule of law and the separation of powers. This was not altogether dissimilar from the defendant’s acknowledgment in its submissions that there was a “basic structure” to the Constitution in the sense that the Constitution rested on the selfsame overarching principles. On the other hand, I noted the defendant’s submission that these overarching principles essentially served to inform the interpretation of the Constitution, but that this was “no more than a specific application of the general principle of purposive statutory interpretation”. I noted also that the amendments which brought forth Arts 19 and 19B of the Constitution would not conceivably offend this “thin” conception of the basic structure doctrine. These amendments did not involve any curtailment of the judicial power or any other incursions into the precepts of the rule of law and the separation of powers.

For the purposes of these grounds of decision, I do not think that it is fruitful for me to go beyond this level of generality and attempt to opine on whether there are further granular elements to the “basic structure” of the Constitution, and what these may be. This is all the more so given the broader power of amendment under Art 5 of the Constitution (which includes the power to repeal constitutional provisions), as compared to the Indian Constitution. This suitably recognised the need for a degree of flexibility which was necessary and appropriate in the context of our unexpected journey into nationhood.

I do not propose to venture a more conclusive view or to delve into a fuller exploration of this question for present purposes, as my decision in the present case did not depend on whether the basic structure doctrine was or was not part of Singapore law. As Mr Kumar rightly suggested, it was not strictly necessary for me to decide the OS on this basis: even assuming that the basic structure doctrine did apply (in its full force, and not just by means of a “thin” conception), it would not extend to the amendments that brought forth Arts 19 and 19B of the Constitution (see [69]–[73] below). As such, I declined to make a definitive ruling on this point. For the purposes of these grounds of decision, I would confine my observations solely to what I have set out above.

(2) The “right to stand for public office”

Even if the basic structure doctrine did apply in Singapore (in its full force, and not just by means of a “thin” conception), it was clear to me that the amendments that brought forth Arts 19 and 19B of the Constitution would not have offended the basic structure doctrine because the “right to stand for public office” would not have fallen within its ambit. Given the plaintiff’s submissions on this issue (see [54] above), it was plain that the “right to stand for public office” which came within his contemplation comprised the unqualified right of any citizen to stand for elections, not only for the office of the President, but for any public office. It will be recalled that the Court of Appeal in Yong Vui Kong 2015 observed (at [71]) that “in order for a feature to be considered part of the basic structure of the Constitution, it must be something fundamental and essential to the political system that is established thereunder” [emphasis added]. The “right to stand for public office” urged by the plaintiff was clearly not such a feature.

I examine first the office of the President. In this regard, the defendant pointedly submitted that an unqualified right to stand for the office of the President could not be “fundamental and essential” to the Constitution when the Presidency was not even a popularly-elected office for 28 years after Singapore’s independence. The defendant further pointed to the fact that an elected Presidency only came into being in 1991, with the first popular election held in 1993. Before that, therefore, no one had a right, let alone an unqualified right, to stand for the office of the President. I agreed entirely with this submission. There being no pre-existing right (whether unqualified or otherwise) to stand for the office of President prior to 1991, it could not be seriously argued that a right (again, whether unqualified or otherwise) to stand for the office of President was one that was “fundamental and essential” to the political system established under the Constitution.

The defendant further submitted, in the context of Art 19 of the Constitution, that since the eligibility criteria for the President were introduced in 1991, there had been several popular elections for President, which Singaporeans had participated in without any challenge against the constitutionality of the process, or the individuals who held the office of President. The point was that it was incredible to say, after all this time, that some deep violence had been inflicted on the Constitution. With respect, I did not agree that the mere fact that there had been no prior challenges to the validity of the EPS automatically amounted to a validation of its legitimacy. However, I accepted that it was relevant to consider that the EPS had withstood the test of time, at least since its introduction in 1991.

Insofar as the plaintiff’s purported “right to stand for public office” related to other public offices, this was a complete non-starter. In this regard, I agreed with the defendant that an unqualified “right to stand for public office”, far from being “fundamental and essential” to the political system established under the Constitution, was inconsistent with our constitutional framework. In this connection, the defendant highlighted several constitutional offices which were not popularly elected, including judges, the Attorney-General, members of the Public Service Commission and permanent secretaries.

In the final analysis, the “right to stand for public office” urged by the plaintiff, involving as it did the unqualified right of any citizen to stand for elections, could not be said to be “fundamental and essential” to the political system established under the Constitution. Hence, even if the basic structure doctrine did apply in Singapore, the amendments that brought forth Arts 19 and 19B of the Constitution would not have offended it. I would finally also observe that the plaintiff had, in the Supporting Affidavit, accepted that any right to stand for the office of President was contingent on a person “meet[ing] the right qualifications” and that the selection “should be based upon merit, all other relevant requirements being fulfilled and withstanding”. This flatly contradicted his case based on the basic structure doctrine at least insofar as Art 19 of the Constitution was concerned, and was yet another example of the manifest lack of clarity that permeated his case.

Art 12(1) of the Constitution

The plaintiff’s challenge based on Art 12(1) of the Constitution was targeted at Art 19 of the same and appeared to flow from the first prayer of the OS, which stated as follows:

In the Supporting Affidavit, the plaintiff similarly claimed that “[t]he EPS [was] in contravention of Article 12 of the Constitution in that it deprive[d] citizens the right to stand for public office”. I surmised that the references to Art 12 of the Constitution in these two instances were really references to Art 12(1) of the Constitution. This was consistent with the plaintiff’s complaint in the context of Art 12(1) of the Constitution in the Supporting Affidavit, which was that “the fundamental rights of Singapore citizens as being equal citizens before the law [were] being breached”, on the basis, it seemed, that there was a breach of “the right to political participation and to stand for any public office”. This appeared to relate to his reference to the “equal right to stand for elections regardless of class, status, position of institutional power in society or wealth” in his skeletal arguments.

The plaintiff did not explain why Art 12(1) of the Constitution could be used to invalidate Art 19 of the same. No authorities were cited to support this proposition. However, I agreed with the defendant that, even if one were to assume, arguendo, that this was permissible, the plaintiff’s challenge on this ground could be quite easily disposed of.

The “well-settled” test for determining whether a law violates Art 12(1) of the Constitution is the “reasonable classification” test, under which a differentiating measure prescribed by legislation would be consistent with Art 12(1) of the Constitution only if: (a) the classification is founded on an intelligible differentia; and (b) the differentia bears a rational relation to the object sought to be achieved by the law in question (Yong Vui Kong 2015 at [105]).

There was no doubt that (a) was satisfied. As for (b), I agreed that the eligibility criteria in Art 19 of the Constitution bore a rational relation to the purpose of ensuring that Presidential candidates were qualified to serve as President. This object was evident from the Second Reading of the Constitution of the Republic of Singapore (Amendment No 3) Bill (Bill 23 of 1990) (“the 1990 Bill”), where then First Deputy Prime Minister and Minister for Defence Mr Goh Chok Tong explained (Singapore Parliamentary Debates, Official Report (5 October 1990) vol 56 at cols 559–560):

Similarly, the Select Committee on the 1990 Bill stated (Report of the Select Committee on the Constitution of the Republic of Singapore (Amendment No 3) Bill (Bill No 23/90) (Parl 9 of 1990, 18 December 1990) at paras 6, 9 and 13):

In the circumstances, I saw absolutely no basis for the plaintiff’s attempt to impugn Art 19 of the Constitution on the basis of its purported inconsistency with Art 12(1) of the same. At this juncture, reference may once again be made to the plaintiff’s contradictory acceptance of the eligibility criteria in the Supporting Affidavit (see [73] above).

Art 12(2) of the Constitution

The plaintiff’s challenge based on Art 12(2) of the Constitution was targeted at Art 19B of the same and appeared to flow from the second prayer of the OS, which stated as follows:

In the Supporting Affidavit, the plaintiff contended that “the racial requirement in the upcoming reserved election and the hiatus-trigger status serve[d] as discrimination” contrary to Art 12(2) of the Constitution. It was further submitted that the EPS “cause[d] discrimination on the grounds of ethnicity”. It appeared that these corresponded to his reference in his skeletal arguments to the “equal right to stand for elections regardless of our colour or variety of speech or belief, namely, race, language or religion”.

Again, the plaintiff did not explain why Art 12(2) of the Constitution could be used to invalidate Art 19B of the same. However, his case failed at the outset because Art 12(2) of the Constitution is expressly subject to other provisions of the Constitution:

This conspicuous qualification to Art 12(2) of the Constitution was either conveniently or carelessly glossed over by the plaintiff. The words “this Constitution” in Art 12(2) of the Constitution obviously include Art 19B of the same and there was thus no question of the two provisions being inconsistent with each other or of one having to concede to another.

Moreover, even if one were to assume that Art 12(2) of the Constitution could be used to invalidate Art 19B of the same, this would not be tenable as the latter was not racially discriminatory and consequently not inconsistent with the former.

Art 12(2) of the Constitution prohibits, inter alia, “discrimination against citizens of Singapore on the ground only of … race” [emphasis added]. As the defendant rightly pointed out, this does not lay down a requirement of race-neutrality. Indeed, the defendant pointed to various constitutional provisions which made it clear that the Constitution is not race-neutral. These included Art 152(1) of the Constitution, which states that “[i]t shall be the responsibility of the Government constantly to care for the interests of the racial and religious minorities in Singapore”, as well as Art 39A of the Constitution, which establishes group representation constituencies to “ensure the representation in Parliament of Members from the Malay, Indian and other minority communities”.

In arguing that Art 19B of the Constitution was not racially discriminatory, the defendant relied heavily on the analysis of the PCMR on the reserved elections framework (Report of the Presidential Council for Minority Rights on the Constitution of the Republic of Singapore (Amendment) Bill (Bill No 28/2016) (Pres Co 21 of 2016, 25 November 2016) (“PCMR Report”)). The PCMR’s views do not, and cannot, bind the courts. Moreover, the PCMR’s role does not correspond exactly with Art 12(2) of the Constitution. As pointed out by the defendant, the role of the PCMR includes scrutinising Bills passed by Parliament for “differentiating measures”. A “differentiating measure” is defined in Art 68 of the Constitution as follows:

Notwithstanding, I agreed fully with the analysis of the PCMR and was of the view that its reasons for concluding that Art 19B of the Constitution would not, if enacted, be a “differentiating measure” as defined under Art 68 of the Constitution, applied equally to the question at hand, namely, whether Art 19B of the Constitution was inconsistent with Art 12(2) of the same.

First, the PCMR noted that the framework for reserved elections applies equally to three racial communities, namely, the Chinese community, the Malay community and the Indian or other minority communities (PCMR Report at para 4):

In my view, this was the strongest argument against the plaintiff’s challenge on the basis of Art 12(2) of the Constitution. The equal application of the reserved elections framework to the three racial communities was absolutely fatal to his case. The same hiatus applies to all three racial communities without exception. As the PCMR noted, each community is not advantaged or disadvantaged vis-à-vis the other communities. There was clearly and categorically no “discrimination” to speak of.

Second, the PCMR stated that the purpose of reserved elections is also not discriminatory. Rather, the purpose of reserved elections is to ensure that the office of President will be representative of our multiracial society and to foster multiracialism (PCMR Report at para 5):

Thus, far from engendering a racially-discriminatory framework, Art 19B of the Constitution in fact aims to promote multiculturalism. There was nothing which could be said to be discriminatory about this purpose.

Third, the PCMR observed that the reserved elections mechanism is tailored to be minimally intrusive (PCMR Report at para 6):

I accepted that this argument may not be particularly relevant in the context of Art 12(2) of the Constitution. However, it was helpful to bear in mind that open elections remain the default position, with reserved elections being only a long-stop measure. The reserved elections framework is appropriately tailored to meet its purpose in a minimally-intrusive way. The wood should not be missed for the trees.

In the premises, there was similarly no basis for the plaintiff’s attempt to impugn Art 19B of the Constitution on the basis of its purported inconsistency with Art 12(2) of the same.

At this juncture, I pause to make a final observation. If the plaintiff had intended to mount a bona fide and serious legal challenge to the legitimacy or constitutional validity of the EPS, it did not help that he did not seem concerned to take proper account of the facts and correctly appreciate the law before launching into sweeping and baseless allegations. Aside from vacillating over whether he was proceeding with the OS or seeking to commence judicial review proceedings (see [7] above), a simple case in point illustrates this. As mentioned earlier, the plaintiff maintained that the wool was being pulled over the eyes of the electorate and that other minorities were excluded under the reserved elections framework (see [35] above). This was plainly erroneous since Art 19B(6) of the Constitution defines a “community” to mean: (a) the Chinese community; (b) the Malay community; or (c) the Indian or other minority communities. Art 19B(6) of the Constitution further clarifies that a “person belonging to the Indian or other minority communities” means “any person of Indian origin who considers himself to be a member of the Indian community and who is generally accepted as a member of the Indian community by that community, or any person who belongs to any minority community other than the Malay or Indian community” [emphasis added]. There was simply no question of other minorities being excluded under the reserved elections framework. The plaintiff was but conjuring controversy when there was, in fact, none.

Conclusion

I was impelled to agree with the defendant that the OS was an “extraordinary” application. The plaintiff’s grounds of challenge were repeatedly unclear and there was no indication as to the specific relief or remedy being sought. What the plaintiff appeared to be primarily intent on doing was to ventilate his polemical views on politics and governance in Singapore. This much was plain from how the gravamen of his contentions pertained to political issues. Insofar as his submissions went, they were long on rhetoric but short on coherence and substantive legal merit.

I found that the plaintiff had no standing to bring the OS. It was insufficient that the plaintiff personally did not see eye-to-eye with the qualifying criteria in Art 19 of the Constitution or the reserved elections framework in Art 19B of the same. I also found that there was, in any event, no merit to the substantive issues raised by the OS. Even though the plaintiff had sought to portray the OS as a serious-minded constitutional challenge, the reality fell far short of this. To the contrary, the OS was unmeritorious in almost every conceivable aspect and I had no hesitation in dismissing it accordingly.