BSD in Singapore
Let me now explain more carefully, with reference to an argument about Singapore, what I mean by “contingent” as applied to the BSD. I offer a caveat here that the former Chief Justice of Singapore has argued that I am wrong in saying that BSD does not apply to Singapore’s constitution.[906] If so, then that might be a good thing in the sense that it might lead to the entrenchment of important principles around rights and good governance and I would not cavil at such development.
Or it might not. But in either event, we need to be satisfied that the BSD is plausibly applicable as a matter of convincing legal argument, not just that it is potentially appealing as a matter of judicial policy, which to my mind is another question. That question is I think much better settled by an eternity clause, as discussed by Silvia Suteu.[907] This may indeed be the ultimate fate of the BSD generally, as constitution makers become more aware of the currency of the BSD.My argument arose from a narrative of Singapore’s constitutional history, which goes like this.
Singapore had from 1958 a constitution as a self-governing British colony, which formed the basis of its State Constitution as a state of the Federation of Malaysia from 1963 to 1965. In 1965, Singapore left the Federation and its State Legislative Assembly, declaring itself the Parliament of a now independent republic, passed the Republic of Singapore Independence Act 1965. The Act declared the State Constitution (mutatis mutandis, obviously) as continuing to apply, together with some provisions of the Federal Constitution of Malaysia, such as those on fundamental rights and citizenship, on which the State Constitution was silent. From then until 1980, Singaporean lawyers had to look in at least three places to find “the constitution.” There were a number of amending statutes passed in the meantime, two of which removed, and then later reinstated, the two-thirds' parliamentary majority requirement for a constitutional amendment.
In 1980, Parliament then instructed the Attorney-General to consolidate the relevant documents into one document - the Constitution of the Republic of Singapore - simply by renumbering the provisions, and drafting amendments purely consequential on this renumbering or otherwise simply changing terms used to be consistent with Singapore's status as an independent republic.[908] Following that, the Constitution has been amended many times, sometimes in fundamental respects, as with the introduction of an executive presidency and innovations fundamentally altering the electoral system.[909] Thus, there was no point at which “the people” may be said to have considered what constitutional arrangements were appropriate. Indeed, quite the opposite occurred, as a new constitution was mooted in 1965, but never actually materialised.[910] Accordingly, my argument proceeded, there was no constitutional moment at which the constitution was entrenched, and in fact it is still referred to as a work in progress.[911]A necessary premise here, in my view, is that for the BSD to apply there must be such a moment, and decisions affirming the applicability of the BSD do in fact refer extensively to constitutional history as an explanation and justification for applying BSD. If we go back, for example, to Kesavananda itself, we find it is riddled with statements assuming that there was a single and critical moment of constitution-making. At such a moment, “it was the common understanding that...”; action “could only be taken within the framework of the original document” or “the broad contours of the Preamble”; or that “fundamental rights were considered of such importance that...” or “placed on such a high pedestal that...,” and so on.[912] There is also constant reference to the historical background and the intention of the constitution-makers;[913] and of course to the fact that unlimited power of amending the constitution given to parliament would elevate such power to the status of constituent power.[914] As YV Chandrachud CJ, summing up the effect of Kesavananda in Minerva Mills, colourfully expressed it,
The theme song of the majority decision in Kesavananda Bharati is: “Amend as you may even the solemn document which the founding fathers have committed to your care, for you know best the needs of your generation.
But, the Constitution is a precious heritage; therefore, you cannot destroy its identity.”Somehow the former CJ of Singapore finds in the history of Singapore an implicit moment of some kind.[915] I do not myself, however, find one however hard I look or am keen to find it. The implication of this view is that the constitution would be entrenched purely by legislative action. It would also imply that the changes that have been made, some of which I have labelled fundamental, are either (implausibly) unconstitutional as destroying the basic structure, or await some kind of decisive endorsement as part of the permanent constitutional order. It follows naturally from this view that if, in the future, the people of Singapore were to “seal the deal” by appending their assent via some public-participation process or other mechanism, then the BSD might well be applicable. One problem with the former CJ's view is that if we say there is already an implicit moment of some kind, when did that moment occur, and which amendments are therefore not, in principle, caught by the BSD? To these questions there does not seem to be any convincing answer.
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