Dear friends, I have just filed a constitutional challenge in the High Court against the Elected Presidency Scheme ( "EPS"). This application is filed in my capacity as an ordinary citizen of Singapore.
The application was just served on the Attorney General.
I will go live on Facebook on Wed at 3pm to set out the reasons for my application without commenting on the merits as the matter is before the court.
I would like to thank Professor Andrew Harding who teaches law at NUS , who is a good friend, for his invaluable insights into the basic structure doctrine. This doctrine forms the crux of the application before the court. Prof Andrew Harding is the leading expert in this area.
HERE IS THE SUMMARY OF THE LEGAL ARGUMENTS IN SUPPORT OF MY CONSTITUTIONAL CHALLENGE AGAINST THE ELECTED PRESIDENCY SCHEME :
1. The Elected Presidency Scheme (the “EPS”) as well as the recent amendment to the EPS are unconstitutional as they violate Article 12 as well as the Basic Structure of the Singapore Constitution.
2. Firstly, the recent amendment to the EPS, which reserves certain election cycles for particular racial groups, contravenes Article 12 of the Singapore Constitution. It deprives citizens the equal right to political participation and to stand for public office of the Elected Presidency, even if they possess the appropriate qualifications. The right to stand for the Elected Presidency should be no different from the right to participate in parliamentary elections – all citizens should be equal.
3. Furthermore, the racial requirement in the upcoming reserved election and the hiatus-trigger status are discriminatory, contravening Article 12(2) of the Constitution, which provides that “Except as expressly authorised by this Constitution, there shall be no discrimination against citizens of Singapore on the ground only of religion, race, descent or place of birth in any law or in the appointment to any office or employment under a public authority…” The selection of the elected candidate should be based on merit, all other relevant requirements being fulfilled and withstanding.
4. Secondly, the EPS goes against the Basic Structure Doctrine as it violates the fundamental right of a citizen to stand for public office. The Basic Structure Doctrine provides that any constitutional amendment that goes against the basic structure or key tenets of the Constitution shall be deemed invalid.
5. The Indian Supreme Court held in Kesavanda (1973) that “[a] constitutional amendment that sought to destroy the basic structure of the constitution would be beyond the power of parliament” and “could be struck down by the courts”. It further held that “every provision of the Constitution can be amended provided… [that] the basic foundation and structure of the Constitution remains the same”.
6. The EPS and the related constitutional amendments significantly alter and change the very construct of the Singapore Constitution so framed and goes against the Basic Structure as an overarching parliamentary power, that mandated a constitutional amendment independently, separate from the other two organs of state. As such, this is also a breach of the rule of law which assumes a division of governmental powers or functions that inhibits the exercise of arbitrary state power.
7. The rule of law remains a foundational principle in Singapore with the Constitution reigning as the supreme law of the land, by which the doctrines of separation of powers and basic structure are entrenched. By depriving citizens of the fundamental equal right to stand for public office and promoting discrimination on the grounds of race and ethnicity, the EPS goes against the Basic Structure Doctrine and is also incapable of being construed consistently with Article 12 of the Singapore Constitution.