Constitution – checks & balances prevent power abuse

Assistant Professor Jaclyn Neo argued against the basic features doctrine in the Constitution (“Should constitutional principles be eternal?”; last Saturday). In essence, she contended that there are no features in the Constitution so fundamental that they cannot be altered; to declare otherwise would be undemocratic.

Let us consider an extreme hypothetical scenario, where the majority of MPs vote to remove the constitutional right to equality and enact laws oppressing minority races. Following Prof Neo’s argument, this would be constitutional and legitimate, as long as at least two-thirds of MPs vote in favour of the amendment. The MPs represent the people, and this would ostensibly be in line with popular sovereignty, as Prof Neo argues.

However, the fundamental question we need to ask ourselves is this: Is the Constitution merely a set of laws that can be changed without restraint, albeit after meeting more stringent amendment requirements? Or is there a higher purpose it seeks to achieve, such as limiting the Government’s power and protecting minority rights?

I would argue that it is the latter. The Constitution’s basic features are tied to its core function and inherent nature as a power-limiting instrument. Hence, the concern of making gods of those who wrote the Constitution is misplaced.

Prof Neo further argues that the basic features doctrine endows judges with the power to determine what in the Constitution cannot be altered, possibly elevating them to the “status of demigods”.

Indeed, judges interpret the Constitution and determine the existence and contents of its basic features. However, this is but a consequence of the separation of powers and how our government institutions are structured, rather than any elevation of status.