Moving Past the Founding Moment: A Need to Constitutionalise the Constitutional Text

The rest of this chapter will focus on the courts' role in the two jurisdictions. It will look at how the courts can clarify the constitutional nature of the founding docu­ments in light of the problems discussed in Sections II and III above.^[139]

A.

How the powers of interpretation are divided between the Hong Kong courts and the NPCSC has significant consequences on the way in which the Basic Law is interpreted. The Basic Law, when viewed from the perspective of Chinese law, is legislative versus constitutional in nature. ‘Interpretation' of statutes in the Chinese legal system can include the amendment of text.^[140] However, locally, it is viewed as a constitutional document. This imbues the Basic Law with supremacy over local legislation and a meta-structure or value system that is protective of rights and the rule of law.^[141] Article 158 provides a conduit for the NPCSC to substitute its political perspective on the Basic Law for the judicial perspective of the Hong Kong judiciary. These different understandings of the nature of the Basic Law are likely to manifest in the interpretation of key provisions.

For example, Article 23 of the Basic Law of Hong Kong mandates the enact­ment of national security legislation to prohibit, among other things, treason, secession, sedition and subversion against the Central People's Government.^[142] The design and prosecution of these offences are likely to bring up issues relating to the freedom of expression, assembly, association and personal liberty. A common law grounded interpretation of Article 23 to resolve issues that come before the courts is likely to be more sensitive to the need to balance rule of law and national security concerns than a political interpretation by the NPCSC.^[143]

Aside from Article 23, there are a group of provisions in the Basic Law that are aimed at the realisation of governance by universal suffrage of Hong Kong through locally held elections.

In this environment, there is a case for a stronger role for the local courts in dealing with these issues and retaining a foothold in the interpretation of the Basic Law. This involves resolving some problematic issues relating to the nature of and approach to interpretation of the Basic Law. Under Article 158(1) of the Basic Law, plenary powers of interpretation are vested in the NPCSC. Under Article 158(2), the NPCSC authorises the Hong Kong courts to interpret ‘on their own... the provisions of the Basic Law’ in adjudicating cases. However, in respect of certain provisions (described in Article 158(3)), where the courts are unclear about the meaning of those provisions, they must consult the NPCSC for an inter­pretation before making a decision and then must do so in accordance with the interpretation so provided. Importantly, the role of the Hong Kong courts is in no way a utomatically abridged by the plenary interpretation powers of the NPCSC under Article 158, either as a matter of design or in the way the powers have been utilised to date. Therefore, the lack of clarity in the constitutional set-up should not be utilised to weaken the role of the courts. The Hong Kong courts have discretion on whether or not they should refer something for interpreta­tion to the NPCSC.^[147] It is not suggested that the courts challenge the authority of or any legitimate input by the NPCSC or reverse the established jurisprudence on the scope of Article 158(3). Instead, it is argued that the courts should not automatically assume a deferential and exclusionary role for itself in the area of political reform, but should instead deal with it on a case-by-case basis.

Where the NPCSC issues interpretations outside of any judicial request, the courts can respond to such interpretations in one of four possible ways (in order of decreasing deference). First, the courts are bound by such interpretations and must follow them.^[148] Second, the courts could and should apply common law interpretive techniques to any such NPCSC interpretations; they should not accept them at ‘face value’. Such common law interpretive techniques include the full remit of constitutional interpretive tools (purposive, originalist, living tree etc).^[149] Here the courts could have a role to play in adopting a more Basic Law­consonant and compliant interpretation of an NPCSC interpretation.^[150] Third, the courts could evaluate the validity of such ‘interpretations’ and ‘strike them down’ should they amount to, for example, ‘amendments’ via the back door outside the prescribed Article 159 amendment procedure.^[151] A fourth possibility, which has not yet been explored in the literature or cases in Hong Kong, is the utilisation of some form of a basic structure or basic features doctrine to evaluate the legiti­macy of such interpretations that amount to ‘unconstitutional’ or ‘questionable’ ‘amendments through interpretation’ by the NPCSC. Courts in various common law jurisdictions have sought to identify ‘basic features’ or the ‘basic structure’ of the Constitution to varying ends. In India, for example, the Supreme Court of India has stated on multiple occasions that such basic features are beyond amendment by Parliament and the courts will strike down any amendments that seek to limit, constrain or violate such features.^[152] This idea of the basic structure or features of a constitution makes particular sense in the Hong Kong context. It could serve as a constitutional hurdle for any decisions or interpretations by the NPCSC that have to comply with certain constitutional fundamentals of the Basic Law, including the idea of autonomy and the division of power built into the Basic Law.

As a matter of political reality, the NPCSC and the Central People's Govern­ment are unlikely to be invisible in the interpretation of the Basic Law. This is not the direction in which local-central government relations are going, with ever-increasing involvement in the political governance and autonomy of Hong Kong.^[154] If the courts took a stronger role in pushing back against or re-interpreting NPCSC interpretations, they might lose their perceived legiti­macy and influence once they are viewed as being more active in constitutional adjudication in this area. This could lead to push-back from the NPCSC, which may issue retaliatory interpretations of the Basic Law. Worse still, the NPCSC may issue a ‘clarifying' and perhaps contrary interpretation of Article 158 on the conditions for an interpretation by the NPCSC. This could ultimately lead to the diminishment of the judicial role, as the courts would become bound by more interpretations of the Basic Law from the NPCSC in future cases. This could be an irreversible position in the absence of any democratic or constitutional mechanisms to combat any unilateral constitutional usurpation by the NPCSC.^[155] However, this section highlights the importance of retaining a role for the courts in Hong Kong and the myriad ways in which this is possible: this is to retain a constitutional identity for the Basic Law. The various postures the courts may adopt range from deferential to activist and can be modulated in response to the political temperature. For the courts to take no role would risk the deconstitu­tionalisation of the Basic Law.

B. Role of the Courts: Singapore and the Basic Structure of the Constitution

The Constitution of Singapore can be amended by a two-thirds majority (a national referendum is only required where the issue is one of the relinquishment of sovereignty).^[156] Due to the strong majority held by the PAP (since Singapore’s independence) in a unicameral parliamentary system, this may not be a signifi­cant hurdle, especially as voting is done on the basis of a party whip system. The question of entrenchment in a system committed to constitutional supremacy as part of its text (Article 4) is therefore an important one. This question has been addressed directly by the courts in Singapore in the form of a discussion on the ‘basic structure’ of the Constitution.

The language of the ‘basic structure’ or ‘basic features doctrine’ comes from Indian constitutional law jurisprudence, most notably the case of Kesavannada Bharati v State of Kerala,^[157] where the Supreme Court of India held that ‘every provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remains the same’.^[158] The Supreme Court of India has gone on in subsequent cases to identify such fundamental features of the Constitution of India that are beyond the reach of constitutional amendment.^[159] The application of this doctrine was first tested in Singapore in the case of Teo Soh Lung v Minister for Home Affairs, where the High Court held that ‘the Kesavananda doctrine is not applicable to our Constitution. Considering the differences in the making of the Indian and our Constitution, it cannot be said that our Parliament’s power to amend our Constitution is limited in the same way as the Indian Parliament’s power to amend the Indian Constitution’.^[160]

This remained the position until the very recent decision of the Singapore Court of Appeal in the case of Yong Vui Kong v Public Prosecutor.^[161] The appli­cant in the case had been convicted for trafficking drugs under the Misuse of Drugs Act and received the mandatory sentence of the death penalty under that legislation.^[162] The legislation was subsequently amended to permit the imposition of a mandatory life sentence and not less than 15 strokes of the cane. The applicant was re-sentenced under these legislative amendments. He sought to challenge the caning part of his re-sentence on the grounds that it was a form of torture and violated Article 9 (protection of liberty) as being a form of punishment that was contrary to ‘law, and that caning was discriminatory in its application to men and therefore violated Article 12, which protected equality of persons before the law. The relevant challenge for the present purposes was the argument that (having failed to convince the court of his arguments under Articles 9 and 12) ‘a prohibition against torture and inhuman punishment should be read into the Constitution because such practices violate “first principles of natural law”, all part of the basic structure of the Constitution.^[163] The applicant sought to rely on an interim case, Mohammad Faizal bin Sabtu v Public Prosecutor,^[164] where the High Court had articulated aspects of the basic structure of the Constitution - in that case, the principle of the separation of powers.

The Court of Appeal accepted that this case had introduced the idea that certain aspects of the Constitution are part of its ‘basic structure' into the juris­prudence of Singapore. To this the Court of Appeal added that the right to vote may be part of the basic structure of the Constitution,^[165] acknowledging its earlier decision in the case of Vellama d/o Marie Muthu v Attorney-General,^[166] where it held that citizens had a right to a representative in Parliament in the Westminster model of government that is part of the inherent framework of the Constitution. Using these examples, the Court of Appeal concluded in Yong Vui Kong that in order for something to be part of the basic structure of the Constitution ‘it must be something fundamental and essential to the political system that is established thereunder’.^[167]

There are therefore two open questions for the court to clarify on the ‘basic structure’ of the Constitution. The first is what is ‘essential to the political system of Singapore’. In Yong Vui Kong, the purported prohibition against torture was not considered intrinsically linked to the political system of Singapore and therefore not part of the basic structure of the Constitution.^[168] Second, the Court of Appeal did not conclude whether recognising something as part of the ‘basic structure’ of Singapore had the same impact as the basic features doctrine in India whereby it is beyond the normal amendment process.^[169] In India, the basic features doctrine can be used to strike down constitutional amendments (validly passed as a matter of process) as unconstitutional for violating the basic features. In Singapore, the basic structure has a seemingly more subtle impact on legislation and executive action: the validity of both can be assessed using features of the basic structure.^[170]

Despite not being a full-blown basic features doctrine, the conversation about the ‘basic structure’ of the Constitution of Singapore has importance for the purposes of understanding a possible role for the courts in consolidating the advancement of constitutionalism in a system. Given that major architectural issues were not a formative part of the constitutional design deliberations in Singapore, the courts are now able to contribute, however modestly, to a deeper understanding of what constitutes constitutional fundamentals in Singapore.

The court is further able to use the vehicle of the basic structure of the Consti­tution to advance constitutional dialogue to keep up with changing constitutional conditions. For example, the courts have recently elaborated on the nature of the separation of powers doctrine (part of the basic structure) and its application in Singapore. Previously when the doctrine was elicited, it was used as a tool for judi­cial restraint. For example, in the case of Lee Hsien Loong v Review Publishing Co Ltd,^[171] the High Court elaborated on the idea of non-justiciability (as part of its obiter dicta and in rejecting the application of a media privilege against liability for defamation) and in doing so held that:

In all cases of judicial review, the court should exercise restraint and take cognisance of the fact that our system of government operates within the framework of three co-equal branches; even though all exercise of power must be within constitutional and legal bounds, there are areas of prerogative power that the democratically elected Executive and Legislature are entrusted to take charge of and in this regard it is to the electorate and not the Judiciary that the Executive and Legislature are ultimately accountable.^[172]

However, recently the courts have switched the rhetoric of co-equality in favour of judicial review rather than judicial deference. This was in the case of Tan Seet Eng v Attorney-General,^[173] where the Court of Appeal observed that:

[T]he specific responsibility for pronouncing on the legality of government actions falls on the Judiciary. It is appropriate at this juncture to parse this. To hold that this is so is not to place the Judiciary in an exalted or superior position relative to the other branches of the government. On the contrary, the Judiciary is one of three co-equal branches of government. But though the branches of government are co-equal this is so only in the sense that none is superior to any other while all are subject to the Constitution. Beyond this, it is a fact that each branch of government has separate and distinct responsibili­ties. In broad terms, the Legislature has the power to make the laws of our land, and this power extends even to amending the foundation of our entire legal system and indeed, of our nation, the Constitution. The Executive has the power and the responsibility of governing the country within the framework of the laws established by the Legislature. And the Judiciary has the responsibility for the adjudication of controversies which carries with it the power to pronounce authoritatively and conclusively on the meaning of the Constitution and all other laws. It is the nature of this latter responsibility that results in the Judiciary being tasked with the role of pronouncing on the legality of government actions.^[174]

What is particularly pertinent is the context in which this happened in the case of Tan Seet Eng. This case also involved preventative detention, as did the cases of Chng and Teo Soh Lung, but this time under the Criminal Law (Temporary Provi­sions) Act (CLTPA) and, in particular, section 30(a), which states that:

Whenever the Minister is satisfied with respect to any person... that the person has been associated with activities of a criminal nature, the Minister may, with the consent of the Public Prosecutor - (a) if he is satisfied that it is necessary that the person be detained in the interests of public safety, peace and good order, by order under his hand direct that the person be detained for any period not exceeding 12 months from the date of the order.

The main issue for the Court of Appeal was whether the section 30 ground had been made out and the scope of the court's role in reviewing decisions made under this provision. Despite the constitutional and statutory amendments that sought to scale back the courts' role in reviewing preventative detention decisions under the Internal Security Act, the Court of Appeal in Tan Seet Eng can be seen as reviving its position under Chng Suan Tze in the context of the CLTPA. One of the issues for the Court of Appeal in Tan Seet Eng was whether the approach in Chng Suan Tze to reviewing such detention orders continued to be ‘good law' outside of the context of the Internal Security Act, given the amendments that followed that case. The Court of Appeal answered this in the affirmative.^[175] The foundation for this was the rule of law.^[176] Soon after the decision, the Ministry of Home Affairs issued a statement which stated that the ‘[Ministry] respects and accepts the Court of Appeal's judgment’. It further stated that the Ministry had sought to reissue detention orders with the consent of the Public Prosecutor which would comply with the Court of Appeal's decision in Tan Seet Eng. In particular, the Ministry stated that the orders will set out the impact of the applicant's match-fixing activi­ties ‘on public safety, peace and good order within Singapore' as per the Court of Appeal's interpretation of section 30 of the CLTPA.^[177] The applicant was rearrested less than a week later and the detention order was not challenged.^[178] In addition, the Ministry of Home Affairs released a further three detainees under the CLTPA on the basis that it had reviewed the detention orders of those persons follow­ing the judgment and had come to the view that they also needed to be revoked. Once released, these detainees were not rearrested under fresh detention orders, but were instead subject to the lesser restraint of a police supervision order.^[179] The balanced approach taken to review in Tan Seet Eng meant that the ‘binary clash'^[180] that was apparent post-Chng Suan Tze was avoided with the court's input and the government's response to that input being more collaborative versus combative in nature. ^[181]

The discussion in the cases above places the doctrine of the separation of powers and the idea of limited government squarely within the framework of the Constitution. Earlier discussions undermined the idea of constitutional suprem­acy. This additional layer of explanation in the recent cases on the separation of powers is an incremental extension of the explanation provided in earlier cases and a move towards consolidating the aspirations behind Article 4.^[182] A further clarification by the Court of the Appeal on the nature and function of the basic structure or meta purpose of the Constitution will help to consolidate its identify as just that.

V.