Much ado about nothing: The impossible reception of the basic structure doctrine in Hong Kong, Malaysia, and Singapore?
Abstract:
For the last ten years, unconstitutional constitutional amendment has been one of the most popular topics in comparative constitutional law scholarship, specifically through the lens of the basic structure doctrine. As a judicial limit to constitutional change, this notion has been created by the Indian Supreme Court and has spread throughout the world. The aim of this chapter is to explore other Asian jurisdictions’ reactions, especially in the Asian common law systems: Malaysia, Hong Kong and Singapore. In their respective constitutions, there is no mention of any substantive restriction to a constitutional amendment, except in the case of the Hong Kong Basic Law. There is also no judicial limitation. This paper analyses the reasons that could explain the difficulties and reluctance for those countries to implement the basis structure doctrine.
First, one could identify a historical factor related to the constitutional history of a country. The lack of a ‘constitutional moment’ may explain why Malaysia and Singapore refuse to apply this doctrine. In the case of Hong Kong, ambiguity on the respect by the NPCSC of the ‘basic policies of the People’s Republic of China regarding Hong Kong’ make it difficult to identify and apply supra-constitutional norms as to limit to constitutional amendments.
Second, there could be a theoretical factor depending on the form of the political regime chosen by the country. As a heritage of the Westminster constitutional system, the principle of parliamentary supremacy is at the core of the Singaporean constitutional system. Thus it is reluctant to admit any limits of its parliamentary powers.
Lastly, a political factor could also explain the unwillingness of some judges to apply the doctrine. Malaysian’s case law shows that when there is a mutual respect between the judiciary and the political authorities, judges do not hesitate to take into consideration the basic structure doctrine. However, when their relationship is strained, the doctrine is not even cited by the courts. On a broader scale, this is the core idea of my doctoral thesis: the use of comparative law by constitutional judges depends on the relationship between political authorities.
Virginie Kuoch is a PhD Candidate in Comparative Constitutional Law at Sorbonne Law School, Université Paris 1 Panthéon-Sorbonne. Under the supervision of Professor Pierre Brunet, she is currently writing a thesis on the use of foreign law by constitutional judges in East Asian jurisdictions (Hong Kong, Malaysia and Singapore). Her research areas are focused on Asian legal systems, global constitutionalism, constitutional borrowing, and human rights law. Moreover, Virginie has been a teaching assistant in French constitutional law, French administrative law, and human rights law at Sorbonne Law School, and Comparative Constitutional Law at SciencesPo Paris.