You are on page 1of 12

Constitution without Constitutionalism?

 Friedich
o Christianity: Individual vs political authority
o Good government must still be limited by lawtendency of corruption due to power
o Locke: Division of actual powersMontesquieu: Division of functions
o Distrust of power: something higher must be there to control it, something objectively neutral
 Patterson
o Greeks: fixed number, relationship, method of selection, location of powerdescribe the state of
governance in a country rather than some written fundamental law
 Good or bad law depends on the law of naturemad-made law  if follow this higher law
o Romans: checks + balances, popular sovereignty, higher law
 WHOLE people was the exclusive source of legal authority
 However no fundamental statute
o Natural law (Aquinas): principle of limited government
 State made laws are  to natural lawsstate is the AGENT of the peopletop down
from bottom up haha
 However lack of machinery to enforce this principle
o English
 Natural Law is immutablesupremacy of law = constitutionalism
 Sir Johngovernment cannot take from the people what is theirs without
CONSENTsince law is complex, only the judiciary  interpret it thus government is
EXEMPT from it
 Coke: Common right and Reason is higher lawcommon law controlled the acts of
Parliamentsource of judicial review
 Parliamentary Supremacy subject to judicial interpretation
 Locke legislation  arbitrary because it is delegated power from individuals of the state
and individuals have no right against otherscannot give more than you own
 Law of land applicable to all, no retrospective, enforced through courts and
legislative power  judicial power
 No taking of property without consent
 Legislative power  delegated
 People retain a fundamental power of saving themselvesright to revolution
o Magna Carta 1st concrete form of a form of higher lawrepeated confirmations  its
“universality”
o Absolute monarchyBrunei, constitution gives a legislative structure but there is no elected
parliament in practice…Saudi arabia??
 Ministers are from family members/floating judiciary

Constitutionalism vs legitimacy

 Fallon
o Legal, social and moral legitimacy
o The legality of constitution is very much linked to the present sociological acceptancefor
constitution to be accepted usually socially 
o Moral legitimacy of a constitution is usually minimalreasonably just so it empowers
officials to do stuff that breaks the law but still  provoke morality of the public

 Reason 1: sometimes some people value communal living more so than personal libertysuppose these ideals are engraved as the ultimate and overriding purpose it may not suit their way of life and the situation these countries are in o EG: American Indians Act where tribal communalism is threatened due to the  spiritual/superstition that to regulates public order/abuse of power  Reason 2: liberalization risks homogenizing universalisma form of covert coercion of the liberal state through the façade of moral and ethnic neutrality ( illiberal liberalism)  Reason 3: Liberal constitutionalism  only type of constitutionalism . o To achieve social legitimacy it is vague and accepting of various social norms o Like the legal legitimacy of the constitution. fair and square  Performance: whether the government is able to perform and deliver what it promises o There ought to be one measure of agreement as to the fundamental kind of rule which is right and that is usually enshrined in the constitution o Capacity to convince others of the right to rule rather than to use BRUTE force Lipset o Effectiveness and legitimacy are found usually together but not necessary the same thing one is to do things while the other is to engender and maintain the belief that the current leaders are the most  for society o Degree of legitimacy usually determines the degree of effectiveness and stability of the political system o Effective but  legitunstable such as Thailand o But prolonged effectiveness or economic progress  stability and legitimacy Liberal vs non-liberal constitutionalism  Constitutionalism which has qualities of a constitutional government while not accepting the Western universal ideals of individual autonomy and the neutral state.  Ranett o Legitimacy is required to bind people without actual consent to the constitutional law  Friedrich o Legitimacy is rightful rulethe constitutional making power often the will of the people provides this paper legitimacy o Content of this legitimacypast used to be delegated power from god OR the frequent and repetitive use of a custom may give it legit status o Legality =/= legitimacy though both are usually presentprocedural vs substantive o Types of legitimacy  Religious: from holy text or order  Juristic:  Traditional: customary  Procedural: democratic type elections. the legal legitimacy of precedent based decision making arises from social acceptance o Moral legitimacy often plays a part in constitutional debates as the absence of judicial or legal reasoning creates a vacuum of normative power.

o Liberal means rights and entitlements to the individualsthere are no normative orientation of the state it is the individual who decides themthus the government acts as the neutral arbiter to decide competing value systems o NON-liberal however features norms and institutions that promote a favored patterns of life or attitude that are consistent with the constitutional limitationsovert form of portrayal o Both has the capacity to slip into anarchy and fascismneed to impose adequate structural and conceptual limitations  Reasons 4: Liberalism unfettered  respect the plurality it organizesdisplaces rather than tolerates the predecessorsa society dominated by individualists who venerate personal autonomy view social communities as hanging desperately to their private choicesLEGITIMISES THE ERASE OF THE CONSTITUIONALISM OF THESE SOCIETIES o NOTE this is a mere political liberalism as there is no metaphysical doctrine and does not purge social life of its non-liberal qualities and institutions  Reason 5: Mixed constitution is perhaps the best form of constitutionalism since a society with strong illiberal orientation is easy to incorp liberal views vs the other way round  Reason 6: must distinguish between whether rights are the end or the means to achieving objectives of constitutionalismif a non-liberal can do that than it is perhaps   Reason 7: ENTRENCHMENT of personal liberties vs variety of crosscutting normslatter allows one to see the tensions with constitutionalism o Allows us to see black from white  Public life that implements SELF LIMITATIONSmaking their positive moral purposes systematically non-totalist and exercise of power non-tyranical (this still doesn’t address the substantive claim of how to self-limitmere empty words???)  Non-liberal allows people who feel that some way of life   BUT there are god reasons to put limits on even this best way of life Asian Brand of Constitutionalism  Beer o Legal impact of the Western ideals  on Asia absorbed ideas from the American Declaration of Independence o However some ideals are at fault with such as right to property. freedom of expression. right to self-rule and human dignity and pursuit of economic justice  NOT necessary conflict but I feel it is the degree fo allowance for these rightsrights have degrees of “rightness”  Pye o Acceptance of authority is not inherently bad but rather acceptable key to finding personal happinessexample given is childhood days o Different cultural groups have different gauges to determine the rankings of these rightsSearching of one’s identity Rights vs preference of paternalistic authority  Ginsburg o Confucianismnotion on checks on a highest power is foreign . separation of religion and state. equality of persons.

trust the government as they are honorable men. o Transparency and the rule of law and the facilitation of financial transactionsevery country needs to make changes to their way of thinking in their own ways and strike a balance between competing objectives taking in account their unique circumstances  1stly there is no objective standard of universal shared truths (dualist international law theory) and 2ndly historical and culturally East vs West differ too much to ensure a working constitution that is not good on paper only but to facilitate the happiniess of the people Shared Values  Focused on KPI and performance legitimacy economic success reason being the separation incident which made our sovereignty easily absorbed by other neighboring countries size of nation + no natural resources meant that in order to maintain a foothold in the international community one must be an economic powerhouseother nations wealth is affected by us like Swiss banks  However the future is still an open question what values we care about after 50 years of independence may vary less top down and more dialogue  social cohesion and harmony as Singapore cannot afford any mistakesa snake with 2 heads =  efficiency to survive  Gearing for economic success vs mandate for authoritarianismwhy should one follow an ideal form of Westernian governance when there are obvious benefits in terms of materiality that one can feel and touch pragmatism  Society over the individual consensus over confrontation o Except Parliament as the inherent nature of parliament is to confront! o Stability of governmentcore values of constitution Rule of Law VS Rule BY law  Tamanaha o Pre-liberal conception of rule of law cannot compare with Liberian rule of law as they embrace different objectives . o Constrains on the Emperor’s power is derived through universal truthsbut there are no meaningful way to apply them to see their effect through human hands but rather the wrath of heavens o Law is not used to restrain the government but primarily as an instrument of state powertherefore no actual constrains on the law makings powers themselves  Huntingdon o Different focus between Western conception of how to manage powerslimitations 1st o 2 steps procedureempowerment followed by limitations  The constitution must enable the smooth transition of these 2 stepsboth in institutions and mechanism to bring forth this change this is however IDEAL only  Lee Hsien Long o Different societies have different ways to achieve successneeds competent and honest leaders that are legitimate o Asian countries have a lack of shared history or nationhoodthus the Western model may not be ideal confucianism.

understanding that there is a framework of laws that applied to everyone and lastly as a matter of routine conduct where the kings act suggested some sort of law acting upon him as he is but human too  The problem with this 3 is that there is no formal institution or objective foundation to enforce this ruleno legal remedies but mere political consequences  Liberty and liberation FROM tyrannysimilar concepts that flow side by side but nevertheless conceptually distinct  Dicey o Rule of law has 3 different points of view o 1stly it is against absolute supremacy or predominance of regular lawagainst arbitrary power o 2ndly. related vein is that everyone is equal before the lawno such thing as special class o Constitution is the result of the ordinary law of the landit is not the source but rather the sublimation of private law  Raz o Literally speaking it means people should obey the law and be ruled by it o Government by law and not by men o Law must be capable of being obeyed and thus capable of guiding the behavior of its subjects through open and relatively stable general rules o General principles  Laws are prospective open and clearall laws published  Relative stability of the law  Making of laws are transparent  Independence of the judiciary  Principles of natural justice observed  Review powers of the courts  Access to justice  Prosecutorial and policing agency  pervert the law o Value of the rule of law  Contrasted against arbitrary poweragainst whims and fancies  Stabilizing social relations which but for the law may disintegrate or develop in erratic ways and  for a stable and safe basis for individual planning  Predictability widens scope of ones power of actionliberty of action  Minimize the harm to freedom and dignity which the law may cause in its pursuit of its goals  Thio li Ann o Broader aspect of the rule of lawensuring all relevant government branches acted under the law . o Binary conceptions of rule of law is inappropriate and limitingit should embrace both fight against tyranny and qualities of legalitythis makes it possible to peel away aspects that can be removed away and still retain the essential values of the idea of the rule of law o Birth of the idea is that the government or king is not allow to act wantonly restrictions on the sovereign’s power of positive law  Normative puzzleif the law is the command of the sovereign that he cannot be limited by law. because it means the sovereign is commanding oneselfcommands flow downwards and not as a stasis  3 ways to enforce this restrictionthe king accepted or affirmed that the law was binding unto him.

prospective laws. rigt to personal safety and security  On race and religionlaw is used as the neutral arbitersecularization of law ensures that there is no clear victor which may penalize minority races or religionscommon ground where racial and religious groups to resolve conflicts  Rule of law for peace and stability. transparency. independence of the judiciary and judicial review of administrative action o Success in the economic and legal scene = facilitated by the rule of law??? o Rule of law deployed to undermine or buttress political legitimacy how to evaluate the effectiveness of rule of law through economic means or fundamental rights???  Tamanaha. cruel or torture??? o Conclusion SG view is that due to our unique circumstances then and now there are some fundamental core aspects of the rule of law which are different from that from the West skiff vs tanker so a different approach and different type of rule of law is to be espoused in SINGAPORE  Chng San Tze . secret trials. natural justice. fair trial. free and open elections. law and orderdifferent society has different conception of core values  Key components in Singapore o Stability Not merely a paper constitution but one that is ENFORCED this value displaces the full liberal model of the constitution as many plans on governance will fail due to overly divergent views o Rule of law to manage racial and religious diversity through law + economic  o Basically. o PAPsupremacy of THE law vs arbitrary exercise of power. indefinite detention.  arbitrary arrests. equality under the law. On the thick rule of law idea o Substantive rule of lawideal of rule by an accurate public conception of individual rights which does not distinguish between rule of law and substantive justice o Judge to make the decision which best fits the background moral rights of parties by framing an overarching political principle which is consistent with the body of existing rules and principles HOWEVER difficulty is how to identify the exact moral rights?  no such thing as absolute rights so this thick version  solve conflict of rights in different contexts  Rule of law or rule by law o One is the idea that EVERYONE is under the lawno one escapes or can claim immunity o The other is that law is used as a machinery of the stateUSE of law to achieve certain political or economic agendalaw as a legitimate command to compel citizens to obey o Absolute vs quantified value ??? o Democracy and rights are against the concept of rule by lawpre-liberal version of the rule of law is preferred agains the tyranny of the state so law can be used counter against them Singapore views on the rule of law  Rule of law  determined through abstractthe values it has changes depending on the social cultural and political values of each society  There is a CORE set of fundamental principles nevertheless that should exist in any societyindependent judiciary. what the government considers as the best term interest of the country  Values contested o  Allowing every person to develop his aspirations and dreams? o  Arbitrary arrests. openness.

the king though he is able issue laws and govern the masses is under the purview of the natural law. including process which they can be changed . albeit without any practical restraints  Article 4what makes the constitution supreme? o Wheare:  What gives the constitution its legitimacyit must have been enacted or approved by a competent body  The constitution cannot itself give powers to these people or body for commonwealth countries this is achieved by getting legal authority from the past law giver which is external to themselves  For the USit comes from the will of the peoplelegislature as the agents of the will of the people  The very nature of the constitution which sets out the institutions logically means they have superiority over these laws  Moral basis of the constitution makes it not a normal law by its very nature will of the people therefore in comparison to other laws it is a fundamental law  However in comparison with articles within themselves  to sacrifice some as similar to other laws not all articles are equal in value  Another moral basis whereby government actions can be judged by natural law. o Courts are able to assess the use of discretionary powers objectively part of the scope of rule of law  Teo Soh Lung o To allow courts to investigate into the discretionary powers of the executive will be CONTRARY to the scheme intended by parliamentno abrogation of judicial power as Parliament has done no more than to enact the rule of law relating to the law applicable to judicial reviewSUBJECTIVE o Executive has ACTED UPON ITS JURISIDICTION conferred by Parliamentthin rule of law through procedural justice/legitimacy of the lawright to detain persons that damage the fabric of Singapore stability/peace is CONSTITUTIONALISED  Own view but the problem is that pap controls the entire parliamentif you say that it is constitutionalized it is but a mere statement that the executive is able to change the rules and legitimize it by saying we followed the rules courts by saying this is effectively undermining its ability to keep the government in check Constitutional Supremacy  Idea of the higher law o The common law as stated in Dr Bonham is something permanent and fundamental and is therefore a higher lawcommon right and reason vs elected legislature positive law o Historically. which the constitution purports to establish. grants it a higher law status  Morality and constitution is always closely linked and therefore the structure of the communitythis grants words on paper their normative force  A proper balance between writ in stone values and writ in papyrus that satisfy the needs of the people at the given time and circumstances  this may be changed as these social forces will change.

the  potential to alter the highest law of the land which gives perhaps the PAP  power and as stated power corrupts scissors paper stone relationship  working since powers are not equal Articles 5s  S5allows parliament to amend it via law but with supermajority  S 5(2A)any amendments to president power and to amend the amendment clause and the natural liberties clauses needs a national referendummore important constitutional articles???  S 5Agives president powers to stop constitutional changesadditional cockblocking o Rationale is that amending the constitution is strict enough but people may try to amend the amendment proceduresmakes it harder o Basically more important constitutional articles which directly has an impact or potentially has an impact on the people harder + harder Basic Features doctrine  Sikri CJ o To see whether amending the constitution is  one must see the whole scheme of the constitution o There is no intention in using the word amendment in the widest sensemust be within the broad contours of the preamble and the constitution to carry out the objectives of the constitution.  Constitutional vs Parliamentary supremacy which has the ultimate power?  Legal vs Political constitutionalism judge checks the executive vs legislature checks on the executive Amendments to the constitutiongood or bad?  11 timesconsidering our short history it seems excessively too flexible  Also consider the procedure to amendeasily met given the 1 party system Concur with Walterit is not about the change but the  mechanism for change. to invalid any exercise of power by the government organs which exceeds the limits granted by the constitution… o Lo Pui Sang  Save in accordance to lawthough points towards a type of parliamentary supremacy the fact that constitution is the trump card is the fundamental article to follow. o De Smith  The power to enact a government for the community is the mark of peoples sovereigntya derivative power from an original power that is hybrid between superior and subordinate authority o Dicey  Parliamentary supremacyabsolute legislative sovereignty  Written nature of the constitution represents the contractual status of the people willing to be bound by termslegally immutable relative to other laws  Legal supremacy of the constitution is essential to the existence of the stateTaw Cheng Kong duty of the court to uphold and preserve these rights. its principles o Fundamental features of the constitution…always subsist in the welfare state what if the next government wanted to have change in style of government rather than a welfare state??? .

o If parliament passed the amendments with powerno right of courts to intervene  Ray J o S 13 on laws affecting personal liberties is only on positive law amendment clause s 368 makes no mention of law o Finding the essential or non-essential elements is a fruitless exerciseconstitution itself does not state themalso there is the question as to who is legit to make this distinction. even the overarching principles of the constitution. if you state that there are some rights and articles so fundamentally writ in stone and  amended it means that these liberties may not be sacrificed in respect to other similarly ranked lawsis there such thing as a law higher than a constitution I think notwhat is the source and the content of this higher than higher law???  To say that you can read the constitution and discover the inherent limits to amendments the logical point of amendments is the recognition that rights and liberties change with times. the expression of their common aspirations as to how to live in a country then it should be up to them to decide whether the amend the constitution and this is done through the legislature whom the people electedplace for the courts to discern whether there is adherence and not whether there is Amendments to constitution in the Singapore context  Basic features is not a doctrine espoused in Singapore but referred to the basic structure of the constitution  Executive has acted in its jurisdiction conferred by parliament courts have no power to substantively declare amendments as invalid  Phang Chin Hock nowhere in the Malaysian constitution is there any hint of limitation of power… distinction between laws enacted by ordinary parliament and those acts affecting the constitution . if the courts does it this is effectively robbing the parliament of the ability to amend no objectivity to this unpredictable and indeterminate task o Procedure established by law vs due processspecific as framers negative the vague indefinite reasonableness of laws due to political social and economic groundsfreed judicial review on subjective determination as courts  determine the wisdom of these amendments o Fundamental rights are amendable the middle of extremes suggest that there is a greater degree of common aspirations o Giving legislative powers all power to amend the law without limit is rightfully respecting their dominion of power and thus respective the power tension between organs if the power of amendment does not have any limitation and this power is denied by reading inherent restrictions it means that the courts are re writing the constitution!  Dwived J o Courts are not free to declare an amendment void because in their opinion it pervades the spirit of the constitutionuncertain!  Personally. if there is anythus if you say there are limits such limits should be clear and explicit. the courts should not need to read between lines and discover the limits as this potentially breaches their scope of powers given to them  Courts should not derive limits of constitutional amendments if one treats the constitution as the will of the people.

as opposed to any law inconsistent with “any provision of this Constitution”. o The constitution is made by a constituent assembly thus there needs to be limits on amendment???  Consituent assemblyspecial purpose to create the constitution o HardingRSIA has no legal status and is not exactly legitimate/higher law as it was drafted by a council of legislators…it cannot be the grundnorm as there is no authorization. cannot alter this fact that the people have chosen to be 1 Singapore state. who the people chosen. Democratic. Federal Nature  CJ Sikrichange must be made within the broad contours of the Preamble and the Constitution to carry out the objectives within these texts…intention of the Constitution makers…freedom and dignity of the individual o Singapore NO preamble so how?  Right to vote implied from art 65-66privilege means that there is some higher power giving citizens this privilege  Right to democracy republic of Singapore + GE within 3 months of dissolution of parliament  Sovereignty. integrity and unity of Singapore from the constitution  The question is whether these are immutableif so where is the verification and justification to make this writ in stone forever???  What if the government changed to be more socialist like + join back Malaysia as a federated statethese articles will have to be amended??  COUNTERmandate was given to the government in the process of democratic election so they cannot alter the state of constitution and change it undemocratic  In the 1st place sovereignty is something the nation choseby means of national referendum when separated from Malaya so Parliament. the constitution itself is the gift by the legislation o Taw Cheng Kongassumption of independence grants the Singapore Parliament to pass valid laws…separation with Malaysia that made Singapore a sovereign state meant that Parliament possess unlimited power (parliamentary supremacy???)…this was then passed the RSIA which delegated this unlimited power to the constitution  Method for finding these basic features o Indian featuresSupremacy. is void. and the Singapore government may not do an act. The specific form of words used in Art 4 reinforces the principle that the Singapore parliament may not enact a law. CJ sat  It should be noted that Art 4 of the Singapore Constitution states that any law inconsistent with “this Constitution”. Separation of Powers. which is inconsistent with the principle of separation of powers…  The principle of separation of powers is fundamental and basic to constitutionalism as without it the constitution is a worthless piece of paperseparation of powers in a scissors paper stone like fashion to ensure the CONCEPT of constitutionalism  WINSLOWS COMMENTS . o Mohammad Faizal bin Sabtuspecial court of the High Court. Secular.

collision course with the judiciary (strong words) o USAjudiciary as the final arbiter o UKparliamentary supremacy  Liberal constitutionalisma neutral state. Asia. personal liberty   Singapore under LKY soft authoritianism type of constitutionalism o Playing field of elections are NOT equalchanging electoral boundaries. Indonesia: losing face. hard to defend against o Legal society only can give advice on legislation if asked tochange of the rule of law  Can an Act of Parliament be against rule of law? o  due to Art 149constitutional o But against general standard of rule of lawnot adhering to ROL o Legality vs ROLyardstick for comparing different countries’ contents governance  Art 4 introduced into the constitution as back then it was a state constitution o Supremacy o Repugnancy Marbury v Madison o SeverabilityDato Yap Peng  What makes constitution supreme o Review art93enforcement clause o Rigidityhard to changeUS EXTREMELY HARDart5  Basic Features? o Amendment procedure  every article can be amended safeguards as to the basic features? o Faizal separation of powers is essential and paramount  State courts are not entrenchedaltered  Sovereignty and integrity of Singapore Yong CJ just lifted WTF o EP  basic feature  Just that he has the people’s mandate to question the government’s action . respect teachers  Rule by lawa system of positivism…all law is good??? o Justification of holocaust and nazi  Strong and independent judiciary recommended by the PM??? o Government puts the judges in difficult situations??? o Cast Iron case of defamationeasy to prove. Division of powersDivision of power o Central vs local governmenteg Malaysia o Town Council system but MPs are also doing local government work so not exactly  Singapore realityexecutive controls legislature due to Singapore’s PAP majoritypolitical whip o Singapore…Cheng Chuan Tze  such thing as unfettered discretion by courts but the legislature can change laws to overrule the judiciary the next time. executive chastised the judiciary as interventionist.On Constitutionalism  Basic Premise of ConstitutionalismLimitation of power by government o Separation of powers to prevent accumulation of power  Except minister come from MP answer powers from Parliament o Checks and Balances in case powers unbalanced o Rationale Distrust of power o Constitution  needed for constitutionalismUK model where constitutional rights found in common law such as right to free speech  Cf. non-independent elections. notice of election date o Defamation no one will serve if the leaders are targets for defamation vs honest critique o Gay marriage repercussions as to the family unit of Singapore  Core values of society vs government o Japan.

 Singapore Constitution o Drafted by the British Executive (subsidiary legislation) thus no constituent assembly o India has Preamble + Principles of Constitution states what are the purposes of the constitution  thus cannot amend to alter the character of the constitution o Only 1958 had a preamblespecial position and rights of Malay  Process of voting is in accordance to the ACTnothing to prevent the government to change the number of votes to 1 personnot a super right .