User:Sgconlaw/Judicial review in Singapore

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Judicial Review in Singaporean Administrative Law is used to challenge the legality of a decision made by a public authority. There are three traditional grounds upon which such a challenge may be brought: illegality, irrationality and procedural impropriety. There are also two developing and possible grounds of legitimate expectations and proportionality. Before such an action may be brought, the applicant must first satisfy the threshold requirements of locus standi, amenability and justiciability.

Introduction: Judicial Review in Administrative Law

Definition of Judicial Review

The judiciary will determine the legality of a decision made by the executive branch or its agencies. Unlawful administrative decisions will be remedied.

Influence of English Administrative Law on Singaporean Administrative Law

UK administrative law is often relied upon as authority for Singaporean administrative law because Singapore adopted the English system of Administrative Law. This explains the frequent references to English Administrative Law precedents. The growing European influence in English administrative law has sparked arguments that recent English administrative law developments are inappropriate for Singapore. These arguments are premised on the alleged “public values” dichotomy between liberal democracies (UK) and communitarian democracies (Singapore).

Rationale of Judicial Review

First, public authority cannot act beyond powers conferred upon it by the legislature. This simple ultra vires principle is “the central principle of administrative law”. Where statute confers discretion on a public authority, courts can still review a public body’s decisions based on common law administrative law principles. The basis of these rules is that Parliament could not have intended to misuse its discretion.

Second, judicial review is based on the constitutional principle of the rule of law. As held by the Court of Appeal in Chng Suan Tze v. Minister for Home Affairs “All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power”. Therefore, even the government must act in accordance with the law. Public authority decisions must conform to legislation and common law principles of natural justice.

Third, judicial review is also based on the constitutional doctrine of separation of powers. This promotes because inter-branch accountability as courts may examine the legality of public authorities’ decisions. Emphasis, however, must be placed on the fact that judicial review “is not concerned with the decision but with the decision-making process”. There is a dichotomy between the legality and merits of a decision. Courts may review whether a decision is legal but not whether it is desirable. This adheres to the constitutional separation of powers doctrine earlier mentioned.

Relationship of the Executive Branch and the Judiciary

It is argued that the role of the courts in judicial review is dependent on the socio-political context of the country.

In Singapore, it has been argued that the "green-light" view more appropriately fits Singapore’s socio-political context. The “green light” view does not perceive courts as the first line of defence against administrative abuses of power . Instead, Parliament and the Executive are expected to police themselves by holding themselves to high standards of public administration and policy. Courts play a supporting role in articulating clear rules and principles.

Parties Entitled to Bring a Dispute Before the Court

Before the court examines the substance of the case before it, the applicant must demonstrate that he is in a position to even appear before the court on the matter. This is the judge-made requirement of locus standi or standing. It is a procedural barrier which an applicant must satisfy before the court examines the substance of the case. This requirement is put in place to prevent abuse of the legal process in the wastage of courts resources and time from hearing cases from “busybodies”. The appropriate test to determine locus standi depends on the nature of rights in the dispute. A plaintiff can only bring a personal suit for a case of an interference of his personal right where there is:

• A real interest in bringing the action
• A real controversy between the parties concerned; and
• A violation of a private right

A real interest or “special damage” may include cases where a public body has breached its public duties in such a reprehensible manner to satisfy the courts that it would be in the public interest to hear it.

Matters in Respect of which Judicial Review May Be Sought

Judicial review, being a public law action, only applies to public acts and decisions. If an act or decision can be subjected to judicial review, it is said to be amenable. If the disputed decision relates solely to private law matters, it is not amenable and private remedies should be sought instead. The court in UDL Marine (Singapore) Pte Ltd v Jurong Town Corporation identified two tests that apply to amenability:

• The nature test and
• The source test

The source test requires the court to consider the source of the respondent's power in making the decision that the applicant seeks to impugn. If the source of power is in a statute or subsidiary legislation, the decision is susceptible to judicial review. On the other hand, the nature test requires the court to consider whether the respondent's decision involved an exercise of public law functions. If so, the decision is susceptible to judicial review.

Areas where Judicial Review May Not Be Sought

The concept of justiciability was stated succinctly in Lee Hsien Loong v Review Publishing Company Ltd:

...there are clearly provinces of executive decision-making that are, and should be, immune from judicial review.

These provinces are non-justiciable. The rationale underlying this doctrine is the constitutional doctrine of separation of powers. A further reason eluded to was that such matters involve the intricate balancing of competing policy considerations that judges are ill-equipped to adjudicate.

The areas identified as non-justiciable include:

• Dissolving Parliament;
• The conduct of foreign affairs;
• The making of treaties;
• Cases concerning international boundary disputes or the recognition of foreign governments
• Matters pertaining to war;
• The deployment of the armed forces; and
• Issues pertaining to national defence

Grounds for Judicial Review

The grounds for judicial review are traditionally illegality, irrationality and procedural impropriety. Additional grounds for judicial review like legitimate expectations and proportionality have developed although their scope and applicability remain unclear.

Illegality

Illegality is one of the grounds for judicial review in Singapore. The ground of illegality can be classified into two headings, with multiple sub-grounds as follows:

1. Whether the Authority was Empowered to Make The Decision
   1. Simple Ultra Vires
   2. Error as to Precedent Fact
2. Whether the Authority Exercised Its Discretion Wrongly
   1. No Evidence
   2. Error as to Material Fact
   3. Relevant and Irrelevant Considerations
   4. Improper Purpose
   5. Mixed Purpose Cases
   6. Fettering of Discretion

Whether the Authority was Empowered to Make The Decision

If the authority had no power to make the decision in question, the authority is considered to have acted illegally.

Simple Ultra Vires

A public authority will be considered to have acted illegally “when it is considered that the [public authority] did not have the power that it purported to have and that there was therefore no basis in law for the impugned action." The court will have to examine the relevant statutes in order to determine the exact powers of the public authority in question. “Where the courts decide that there is neither an express nor an implied power to make a decision or other measure, a finding of illegality should follow." The doctrine has been applied locally in Wong Yip Pui v Housing and Development Board..

Error as to Precedent Fact

When the public authority makes a decision requiring certain objective facts to be present, the court may inquire into the existence of these facts. The court will have to examine the relevant statutes in order to determine the exact powers of the public authority in question. “Where the courts decide that there is neither an express nor an implied power to make a decision or other measure, a finding of illegality should follow.. Where these facts do not exist, the public authority will be considered to have acted illegally.

The court in Chng Suan Tze v. Minister for Home Affairs also noted that whether or not a particular discretionary power is subject to a precedent fact depends upon the construction of the relevant statute that confers that power. It must be noted that Parliament may limit judicial review on a precedent fact category, even if this concerns the liberty of a subject.

Whether the Authority Exercised Its Discretion Wrongly

Under this head, even if the authority had the power to make the decision in question, it will still be considered to have acted illegally if it made the decision contrary to specific rules.

No Evidence

Where the authority exercises its discretion or makes a decision unsupported by any evidence.

Error of Material Fact

Where the authority exercises its discretion or makes a decision upon an incorrect basis of fact.

Relevant and Irrelevant Considerations

Where the authority takes into account irrelevant considers or omits relevant considerations in exercising its discretions or making decisions.

Improper Purpose

Where the authority takes into account irrelevant considers or omits relevant considerations in exercising its discretions or making decisions.

Mixed Purpose Cases

Where the authority exercises its discretion or makes a decision for a dominant purpose other than what the purpose the discretion was granted for.

Fettering of Discretion

There are two principles under this sub-ground. In general, public authorities are free to formulate and adopt policies that are “legally relevant to the exercise of their powers, consistent with the purpose of the enabling legislation, and not arbitrary, capricious or unjust”. However, such policies must not be applied rigidly so as to become a rule to be applied in each case. The public authority must be open to recognizing exceptions to the policy.

The second principle under this sub-ground is that if a public authority is conferred some discretion by statute, it may not delegate that discretion to someone else to decide on its behalf. If a public authority does so, it will be considered to be a fettering of discretion.

Irrationality

The standard of irrationality, Wednesbury unreasonableness, is defined as:

“...something so absurd that no sensible person could ever dream that it lay within the powers of the authority...”

An example given from the seminal case of Associated Provincial Picture Houses v Wednesbury Corporation was a teacher being fired for the sole reason of having red hair. The ground was also applied in Chee Siok Chin v Minister for Home Affairs. The court held that the police acted reasonably in breaking the applicants’ protests. The police had objective reasons to believe that an offence was being committed as the props seemed “calculated” to harass.

Rationale for Irrationality

Public authorities are given discretion over a certain area. This discretion must be wielded responsibly. To do otherwise runs counter to the very purpose their discretion was granted for.

Spectrum of the threshold for unreasonableness

In English Law, Wednesbury unreasonableness is applied with varying levels of irrationality . The varying thresholds for unreasonableness are situation dependent.

Anxious Scrutiny

The standard is whether a reasonable authority could have made the decision. This is usually applied where the decisions in question affect the infringement of fundamental human rights. The Courts more intrusively inquire into the merits of the public authority’s decision by examining whether it fits in a range of reasonable options.

The Court in West Glamorgan County Council v Rafferty considered the merits and demerits of allowing a group of gypsies stay within a compound the public authorities wanted to exclude them from.

Ordinary Wednesbury

Courts will only interfere where the decision is outrageous in its defiance of logic that courts find against the public body.

Light Touch Review

This standard is whether the decision is “so absurd that the [public authority] must have taken leave of his senses”. The judiciary is largely reluctant to even examine the merits of the public authority’s decision usually where the Courts have no expertise in the area or a matter of public policy.

Singapore Position

It is currently unclear whether there are similar different levels of irrationality in Singapore law. It is possible that Singapore has adopted a light touch review standard in matters of public policy.

For instance, in Re Siah Mooi Guat, the court held that the Minister for Home Affair's decision to refuse the claimant a re-entry pass could not be invalidated. No reasons need be provided because it was a matter of national interest concerning border security.

Procedural Impropriety

"Judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred…”

There are two broad categories to be considered under this ground:

1. Procedural legitimate expectation;
2. Breach of common law rules of natural fairness and justice

Procedural Legitimate Expectation

This will be covered below under procedural “Legitimate expectations”.

Common Law Rules of Natural Fairness and Justice

There are 2 common law rules of natural fairness and justice:

1. The Rule Against Bias
2. The Right To Fair Hearing

These rules serve to protect procedural fairness towards a person who will be affected by a public authority's actions. A decision made in breach of these rules is challengeable.

Rule Against Bias

Every person has a right to be heard by an unbiased tribunal. If a public authority is found to be biased, the decision is challengeable. Under this doctrine, bias can be divided into actual, imputed or apparent bias.

To prove actual bias exists, an applicant must either prove that the public authority was influenced by some extraneous interest or prejudice or was really prejudiced in making the decision. Courts have noted that applications of actual bias are very rare as proof of actual bias is difficult.

For imputed bias, the bias is imputed to the public authority if he has an interest in the outcome of the case . This bias may arise out of a proprietary or non-pecuniary interest.

Apparent bias arises where there is a potential public perception of bias. This is based on the principle that justice must be manifestly seen to be done. In Singapore, two different tests have been applied for apparent bias:

1. Reasonable suspicion test: whether a reasonable man would suspect any bias;
2. Reasonable likelihood test: whether there is a chance that the claimed conflict of interest might have had some effect

The position on which test is to be used has not been definitively decided by the Court of Appeal.

In Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board, it was held that the tests are conjunctive as there is little difference between the two tests. . As the court manifests the opinion of the public, the tests are unified by asking the question of whether a reasonable person would perceive there to be a likelihood of a real bias.

In Re Shankar Alan s/o Anat Kulkami, Judicial Commissioner Sundaresh Menon disagreed, holding that the reasonable suspicion test was appropriate test. The court viewed what the public might think as determining whether there seems to be bias, reflecting the strong public interest in ensuring the perceived neutrality of the judiciary.

Right To Fair Hearing

The ‘right to a fair hearing’ is deceptively broad insofar as it encompasses incremental swathes of principles which are manifestly aimed at achieving procedural justice. Statutes, common law, as well as the principles of natural justice all play a part.

Statutory requirements include:

• The right to prior notice
• The right to appeal
• The duty to consult
• The duty to give reasons as well as time limits.

In Yong Vui Kong v AG , the court expressly identified 3 administrative law rules of natural justice which pertain to right to fair hearing:[2]

1. The accused can be convicted of the offence charged only if the ingredients of the offence have been proved by the Prosecution beyond reasonable doubt;
2. The tribunal trying the accused must be independent and unbiased; and
3. The accused must be heard on his defence to the offence charged

In her article “Law and the Administrative State”, Professor Thio Li-ann sheds light on this aspect by stating that the absence of a statutory requirement for fair hearing is not detrimental as it is premised on the rule of law and the principles of natural justice. As can be seen, the common law, statute and the principles of natural justice act as buffers to fill in the lacunae that each may expose individually. For example, though not statutorily enshrined, it has been held in Doresamy v Public Services Commission that there is a stronger case for allowing legal representation where the tribunal hearing places an individual’s reputation or his right to livelihood in jeopardy.

Proportionality

Proportionality as ground for judicial review in administrative law has not been accepted in Singapore yet. However, as former Chief Justice Chan noted extra judicially, proportionality has not been definitively ruled out of Singaporean administrative law.

Definition

The public authority must not act beyond what is necessary to achieve its aim. The court examines whether the means adopted to achieve the objective of the decision is disproportionate. In so doing, the court aims to balance between the rights of an individual and public interest on the assumption that administrative action should not extend beyond what is necessary to achieve its legitimate aim.

Elements

A measure is typically proportionate only where:

1. The means adopted by the authority when using its discretion is in accordance with its legitimate purpose
2. The authority employs means that minimize harm to the individual
3. The injury caused to the individual must not be disproportionate relative to the benefit secured for the public generally.

Legitimate Expectations

Legitimate expectation consists of 2 broad categories:

1. Procedural legitimate expectation; and
2. Substantive legitimate expectation

Procedural Legitimate Expectation

Definition

If public authorities act in such a way that a legitimate expectation arises, they must adhere to said procedures.

Procedural legitimate expectation has long been accepted as a ground for judicial review.

Rationale

“The origins of the doctrine lie in common law fairness and the idea that an individual who will be affected by a decision can expect that he or she will be consulted in advance of the decision being taken."

This principle is illustrated in Council of Civil Service Unions v Minister for the Civil Service (“the GCHQ case”). There was a well-established practice of consultation between the official and trade union sides about important alterations in the terms and conditions of service of the staff at the Government Communications Headquarters ("GCHQ"). However the terms and conditions of service were altered without prior consultation with the trade union. The court held that the history of the relationship between management and staff showed that there was a legitimate expectation of consultation before important alterations in the conditions of service of civil servants were made. However, the present case was dismissed as it concerned issues of national security.

In Singapore, the doctrine of procedural legitimate expectation was applied in the case of Re Siah Mooi Guat. The case concerned a Malaysian immigrant who was declared to be a prohibited immigrant, and thus, an alien, who had her re-entry permit and employment pass cancelled. Her appeal to the Minister for Home Affairs was dismissed. The applicant argued that she had a legitimate expectation to make representations to the Minister before he considered her case. The court, whilst acknowledging the ground of procedural legitimate expectation, held that the applicant did not have any legitimate expectation as rules of natural justice do not apply to aliens.

Substantive Legitimate Expectation

Definition

Where a public authority acts such that a legitimate expectation arises as to a certain course of action will be undertaken, they must fulfil said expectation.

Rationale

An individual will have relied upon the representation to his detriment and the courts will be anxious to avoid the “abuse of power” by a public authority who suddenly resiles from the earlier representation.

Application

In Singapore, the ground of substantive legitimate expectation was expressly accepted in the High Court case of Chiu Teng @ Kallang Pte Ltd v Singapore Land Authority. There, the court conclusively accepted the ground of substantive legitimate expectation:

“In my opinion, the doctrine of legitimate expectation should be recognised in our law as a stand-alone head of judicial review and substantive relief should be granted under the doctrine subject to certain safeguards”

These safeguards are:

1. The applicant must prove that the statement or representation made by the public authority was unequivocal and unqualified;
2. The applicant must prove the statement or representation was made by someone with actual or ostensible authority to do so on behalf of the public authority;
3. The applicant must prove that the statement or representation was made to him or to a class of persons to which he clearly belongs;
4. The applicant must prove that it was reasonable for him to rely on the statement or representation in the circumstances of his case;
5. The applicant must prove that he did rely on the statement or representation and that he suffered a detriment as a result; and
6. Even if all the above requirements are met, the court should nevertheless not grant relief if:
   1. Giving effect to the statement or representation will result in a breach of the law or the State’s international obligations; or
   2. Giving effect to the statement or representation will infringe the accrued rights of some member of the public; or
   3. The public authority can show an overriding national or public interest which justifies the frustration of the applicant’s expectation

Thus, it can be seen that the ground of substantive legitimate expectation is now a stand-alone ground of judicial review

Remedies of Judicial Review

The following public and private law remedies are available in proceedings for judicial review:

• Mandatory order
• Prohibiting order
• Quashing order
• Declaration

Public Law Remedies

The applicant must abide by the O 53 procedure. He must be granted an application for leave before applying for the remedies defined below. To determine whether leave should be granted, the court would examine the evidence and case disclosed briefly to determine if there is a prima facie case of reasonable suspicion.

Mandatory Order

The court instructs the public authority to perform a public duty. This is usually employed to compel public bodies to exercise the powers given to them.This remedy will only be issued if the applicant can show that the performance of a duty is demanded. Courts are generally slow to grant mandatory orders, as they will not dictate how and in what manner public authorities are to perform their duties.

Prohibiting Order

The court prevents a public authority from performing an illegal act. This remedy will be issued when the decision of a public authority is invalid under the law as being in excess of its authority to make.

Quashing Order

The court will set aside or cancel a decision found unlawful and it has the effect of invalidating the ultra vires decision of the body concerned. The issue may be subsequently remitted to the public authority for a fresh decision to be made.

A quashing order will only be granted when the public authority has made a decision or determination with actual or ostensible legal consequences. Such a decision need not have direct legal consequences but can include an act or step capable of altering rights, interests or liabilities.

Private Law Remedies

Declarations

The court gives its opinion on the issue. It merely clarifies the legal position between the parties. It is a discretionary, non-coercive remedy. The court’s decision cannot be enforced on the public authority.

Declarations may be sought with or without a prerogative order. An applicant may also apply for freestanding declaratory relief, if he has a genuine basis to seek for such a relief.

Procedure for Application of Declarations

A declaration does not require an application for leave; it is a standalone decision that can be sought in accordance with O 15 r 16.

Judicial review under the Singapore Constitution

Judicial review under the Singapore Constitution refers to the courts’ powers to invalidate executive decisions or impugn legislation on the ground that they are inconsistent with the Constitution. It is one of the fundamental aspects of the separation of powers doctrine, as it represents the primary mechanism with which the courts may seek to rein in the powers of the executive and legislature to the extent of their constitutionally demarcated boundaries. The power of judicial review is also a crucial element of the Diceyan conception of constitutional supremacy.

In Singapore, Articles 4 and 162 assert the supremacy of the Singapore Constitution over ordinary laws.

Article 4 states:

“This Constitution is the supreme law of the Republic of Singapore and any law enacted by the Legislature after the commencement of this Constitution which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.”

Article 162 states:

“Subject to this Article, all existing laws shall continue in force on and after the commencement of this Constitution and all laws which have not been brought into force by the date of the commencement of this Constitution may, subject as aforesaid, be brought into force on or after its commencement, but all such laws shall, subject to this Article, be construed as from the commencement of this Constitution with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with this Constitution.”

Basis for Judicial Review

While Article 93 of the Constitution vests in the Judiciary judicial powers, it does not expressly grant powers of constitutional judicial review to the courts. However, this role has been implicitly assumed by Singapore courts.

The High Court in Taw Cheng Kong v. Public Prosecutor espoused on the role of the judiciary to ensure that the provisions of the Constitution are observed. Karthigesu JA stated that the courts have the duty to declare invalid any exercise of power, legislative and executive, which exceeds the limits, conferred by the Constitution, or contravenes the prohibition which the Constitution provides.

In Yong Vui Kong v. Attorney General, the Court of Appeal held that Article 93 vested in the Supreme Court the jurisdiction to adjudicate in any constitutional dispute between the State and the individual. The Court further added that the court’s power to review disputes between the State and the people is rarely, if ever, excluded, especially so in Singapore where the Constitution reigns supreme.

This approach would allow the courts to be the proper institution to enforce the limits demarcated by the constitution. As Chief Justice Marshall observed in Marbury v. Madison, where rules conflict, it is “emphatically the province and duty of the judicial department to say what the law is.” In the 1994 case Chan Hiang Leng Colin v. Public Prosecutor the High Court adopted a similar stance, and also affirmed that declaring void administrative actions and decisions that infringe the Constitution is part of its responsibility:

The court has the power and duty to ensure that the provisions of the Constitution are observed. The court also has a duty to declare invalid any exercise of power, legislative and executive, which exceeds the limits of the power conferred by the Constitution, or which contravenes any prohibition which the Constitution provides.

Principles of Interpretation

In exercising their power of judicial review, the courts have to interpret the offending legislation, as well as the provisions of the Constitution that the impugned legislation or executive action purports to offend, before determining whether the legislation or executive action is indeed inconsistent with the Constitution. In order to determine whether a piece of legislation or executive action is unconstitutional, the courts have enunciated several principles of constitutional interpretation.

Presumption of Constitutionality

The presumption of constitutionality refers to the starting presumption of the courts that the Legislature does not intend to pass invalid laws, and that legislation or constitutionally demarcated powers are exercised in accordance with the Constitution. The court “must always be mindful of the presumption of constitutionality”, meaning in cases where the constitutionality of a legislation is being questioned, the court must always presume that the legislation is valid. The High Court in Lee Meng Suang v. Attorney General reaffirmed the approach laid down by the Court of Appeal in Public Prosecutor v. Taw Cheng Kong when reviewing the constitutionality of legislation. The starting point of review is a strong presumption that the legislation is constitutionally valid. The basis for such a presumption is that the Legislature understands and correctly appreciates the needs of its people.The learned judge added that the presumption of constitutionality is intimately tied to the idea of separation of powers. Where issues of social morality are concerned, the judiciary should be slow to exercise their powers of constitutional review. These are questions in which “there can be no expectation that an unelected judiciary will play any role”. Instead, deference should be accorded to persons who are elected and entrusted with the task of representing the people’s interests and will.

One example of how this presumption works can be seen in the context of a constitutional challenge based on Article 12 of the Constitution. In this context, one basis for this presumption finds its roots from the wide power of classification the legislature must have in making laws – for legislation to properly give effect to its policies, it must have a broad enough scope to make laws that operate differently with regards to different groups of persons. The court is required to first lean in favour of constitutionality and support the legislation in question, if it is reasonable to do so. Unless the law is plainly arbitrary on its face, putting forward examples of arbitrariness would not be helpful in rebutting the presumption.

It is assumed that good faith and knowledge of the existing conditions on the part of a legislature are present. So if there is nothing on the face of the law or the surrounding circumstances brought to the court’s notice to prove that the classification maybe unreasonable, the presumption of constitutionality is not rebutted. The standard to be applied has to be a high one or certain individuals or corporations will be subjected to hostile or discriminating legislation based on undisclosed and unknown reasons.

It is then up to the party who is attacking the validity of the legislation to place all materials before the court to show whether the enactment or the exercise of the power under it is arbitrary and unsupportable. What level and kind of evidence required will then depend on the facts and circumstances of each case. A challenger must adduce cogent and factual evidence that the law was enacted arbitrarily or had operated arbitrarily. This places a further burden on any applicant and strengthens such a presumption of constitutionality where factual evidence may be hard to gather. The basis for this principle finds its roots from the wide power of classification the legislature must have in making laws – for legislation to properly give effect to its policies, it must have a broad enough scope to make laws that operate differently with regards to different groups of persons.

Presumption of Generous Interpretation

The presumption of generous interpretation, is that where Constitution has used an expression that can be interpreted in a wide or narrow sense, the court should always lean to the broader interpretation unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose.

The generous interpretation would be used especially where the fundamental liberties of the Constitution are considered, so as to give individuals the full measure of the liberties referred to. This would avoid the “austerity of tabulated legalism”. Where there are exceptions to the fundamental liberties, the courts would then give a narrow interpretation to the exceptions.

However, it should be noted that in giving a generous interpretation to provisions, caution should be exercised to ensure that the interpretation is not extrapolated too far. In Edwards v. R, the court stated that the constitution is a “living tree capable of growth and expansion within its natural limits”.

This approach seems to be at odds with other principles of constitutional interpretation, including the doctrines of deference and strict textualism (as mentioned below). In fact, the court in Chee Siok Chin v. Minister of Home Affairs gave the exceptions found in Art 14(2) a generous interpretation. They held that the phrase ‘necessary or expedient’ gave Parliament an extremely wide discretionary power and remit that permits a “multifarious and multifaceted approach towards achieving any of the purposes specified in Art 14(2)”.

Strict Textualism

Strict textualism is another technique employed by the courts in interpreting a written constitution. Under the doctrine of strict textualism, a court should confine itself to a literal or "straightforward" reading of the relevant canonical text, unless the text is ambiguous on its face or such a reading would lead to an "absurd" or "bizarre" result.

The strictest form of textualism is literalism – a narrow and literal construction of words and phrases. Literalism only applies where the text of the Constitution is free from ambiguity. When the scope of a phrase is broad and imprecise – examples from our own Constitution include “personal liberty”, “equal protection” and “in accordance with law” – literalism is of little help in determining if a particular issue before the court warrants constitutional protection.

In Rajeevan Edakalavan v. Public Prosecutor, the High Court arguably employed strict textualism in interpreting Article 9(3) of the Constitution. The issue in that case was whether or not Article 9(3) of the Constitution imposed on the relevant authority an obligation to inform a person under custody of his right to counsel. The High Court held that the words “shall be allowed” in Article 9(3) were couched in negative terms, and therefore did not impose any positive obligation on the relevant authority. This meant that the constitutional right to counsel guaranteed by Article 9(3) does not extend to the accused being informed of it.

In cautioning against unnecessarily broadening the scope of fundamental rights, Yong Pung How CJ(as he then was) held that

“The judiciary is in no position to determine if a particular piece of legislation is fair or reasonable as what is fair or reasonable is very subjective. If anybody has the right to decide, it is the people of Singapore. The sensitive issues surrounding the scope of fundamental liberties should be raised through our representatives in parliament who are the ones chosen by us to address our concerns. This is especially so with regards to matters which concern our well-being in society, of which fundamental liberties are a part.”

Hence, the judiciary's role is to adjudicate and interpret the laws passed by Parliament with the aim of ensuring that justice is upheld. The judge is in no position to expand the scope of or imply into the Constitution and other legislation his own interpretation of the provisions which is clearly contrary to Parliament’s intention. Such amendments are better left to be addressed in the political and legislative arena.

Purposive Interpretation

Under the doctrine of purposive interpretation, when interpreting a provision of written law, the court should prefer an interpretation that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) to an interpretation that would not promote that purpose or object.

Section 9A of the Interpretation Act establishes that in Singapore, a purposive approach is to be used to interpret statutes, and that courts may refer to extrinsic materials to resolve ambiguities. Section 9A is relevant to constitutional interpretation because “written law” is defined by s 2(1) of the Interpretation Act to include the Constitution. Section 9A is relevant to constitutional interpretation because “written law” is defined by s 2(1) of the Interpretation Act to include the Constitution.

Shortly before s 9A came into force, this rule was affirmed in the common law by Pepper (Inspector of Taxes) v. Hart, applied in Singapore by Tan Boon Yong v. Comptroller of Income Tax.

In the Constitutional Reference No 1 of 1995, which is the first application of s 9A to the Constitution, the Constitutional Tribunal considered as well-established the principle that a purposive interpretation should be adopted in interpreting the Constitution to give effect to the intent and will of Parliament. The words of the Act are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.

The intention is to be found at the time the law was enacted or in some circumstances when it subsequently reaffirms the particular statutory provision. Legislative material such as speeches in Parliament and other contemporaneous documents can be resorted to. Therefore, courts must employ an interpretation that promotes the purpose or object underlying the Constitution or particular Articles of the Constitution.

Resort to contemporaneous speeches and documents is sanctioned only as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity. Even in such cases, references in court to Parliamentary material should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words.

The Constitutional Tribunal also held that it is wrong to adopt a literal approach even if there is no ambiguity or inconsistency, if the literal approach does not give effect to the will and intent of Parliament. Section 9A(2)(a) rejects literalism since extrinsic materials revealing a provision’s purpose or object are to be interpreted according to their ordinary meaning.

It should also be noted that reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done.

Doctrine of deference

Although the Judiciary has taken upon themselves the responsibility to ensure fidelity towards the Constitution, they have in practice demonstrated a reluctance to exercise such powers, preferring instead to, in some cases, defer to the other branches of government.

In Chee Siok Chin v Minster for Home Affairs, the constitutionality of s. 13A and 13B of the Miscellaneous Offences Offences (Public Order and Nuisance) Act was being brought into question. It was alleged that the provisions violated the right to freedom of speech and peaceful assembly granted by Article 14(1) of the Constitution. The High Court held that the impugned legislation fell squarely within the exception of in Article 14(2) as they were considered by the Parliament to be “necessary or expedient” for public interests. More importantly, V K Rajah J (as he then was) emphasised on the need for judicial self-restraint and extreme caution when seeking to determine whether a particular piece of legislation is invalid on the ground that it is an unreasonable restriction of a constitutional right. He also added that the presumption of legislative constitutionality will not be lightly displaced. This arguably evinces a judicial attitude of deference to political branches.

At this juncture, an interesting comparison may be made with the UK courts’ approach in the interpretation and application of the Human Rights Act 1998.

In discussing the doctrine of deference, Laws LJ, in International Transport Roth GmbH v. Home Secretary, enunciated four principles which would guide the courts in determining the level of deference to be accorded to the “democratic powers” – firstly, that more deference will be paid to an Act of Parliament than to a decision of the executive or subordinate measure; secondly, that there is more scope of deference “where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified; thirdly, that greater deference will be due to the democratic powers where the subject-matter in hand is peculiarly within their constitutional responsibility, and less when it lies more particularly within the constitutional responsibility of the courts; and fourthly, the degree of deference due depended on "whether the subject-matter lies more readily within the actual or potential expertise of the democratic powers or the courts”.

While the first principle is largely inapplicable in Singapore as it arose out of the “intermediate constitution” of the UK, where parliamentary sovereignty means that Parliament bears the “ultimate mantle of democracy in the state”, the other three principles enunciated by Laws LJ could be plausible reasons for a judicial philosophy of deference in Singapore. For instance, in Chee Siok Chin v. Minister of Home Affairs, the right of peaceful assembly was, as V K Rajah J noted, clearly a qualified one, and the judge interpreted the exceptions in the provision itself to give Parliament a wide legislative remit to restrict free speech (reflectng the second consideration espoused by Laws LJ). In the context of justiciability, Sundaresh Menon JC (as he then was) also observed in Lee Hsien Loong v. Review Publishing that there are matters of government policy which judges are ill-equipped to adjudicate (having limited training, experience, and access to materials), and also that the democratically elected Executive and Legislature are entrusted to take charge of, and hence should not interfere with. These considerations reflect the third and fourth principles enunciated by Laws LJ. These reasons could explain the courts' reluctance, in some instances, to exercise their powers of judicial review.

However, such a judicial philosophy has not escaped criticism; critics have argued a doctrine of judicial deference is “empty or pernicious”: empty, due to its uselessness in implementing a separation of powers as this is secured by the proper application of legal principles defining the scope of individual rights or the limits of public powers; and pernicious, because such a doctrine may lead to the court’s abdications of its responsibilities as an independent adjudicator between the citizen and the state, leaving the citizen with no redress.

Nevertheless, a philosophy of due deference, especially in matters of policy, remains a large part of the courts’ approach towards judicial review today.

Extent of Judicial Review

Implied Rights

Judicial review has so far been discussed in the context of legislation or executive action being inconsistent with the express terms of the Constitution. However, there may exist rights in the Constitution that are not expressly set out. The implied right to vote could be one example.

Right to vote

Main article: Right to vote in Singapore law

In Singapore, the status of the right to vote is still very much lost within shades of grey. Part IV of the Constitution, which encompasses the fundamental liberties afforded to everyone subjected to the supremacy of the Constitution, does not contain the right to vote or any explicit reference to “democracy”. The Parliamentary Elections Act also appears to regulate rather than create the right to vote.

Taw Cheng Kong v. Public Prosecutor suggested that voting was a privilege granted by the State at its discretion, rather than a fundamental liberty afforded to all. In the case, it was held that “[c]onstitutional rights are enjoyed because they are constitutional in nature. They are enjoyed as fundamental liberties¬ not stick and carrot privileges. To the extent that the constitution is supreme, those rights are inalienable. Other privileges such as subsidies or the right to vote are enjoyed because the legislature chooses to confer them-these are expressions of policy and political will. But the rights are not enjoyed in exchange for 'a certain code of conduct from ... citizens whether they be within or without the country'. So insofar as the prosecution's theory suggests that constitutional rights are bargained rights, conferred not by supreme law but by common exchange with the State, I think it is legally inaccurate.”

However, in 2009, Law Minister K. Shanmugam clarified this position by unequivocally stating that the right to vote is an implied constitutional right, “arising from the various provisions in the Constitution, including Article 65 and 66 which provide for a general election within three months after every dissolution of Parliament”. Under the doctrine of separation of powers, the Minister’s statements is not conclusive of the legal position; there has, however, been no judicial pronouncement on the matter.

If implied rights are indeed recognised by the courts, then arguably the courts' powers of review extends to instances where legislation or executive action are inconsistent with such rights.

It is also pertinent to note that the recognition of an implied right to vote might open the possibility of the recognition of other implied rights in the Constitution. In Australia, the implied constitutional right to freedom of political communication was recognised and developed in several key cases – most notably, Nationwide News Pty Ltd v. Wills and Australian Capital Television Pty Ltd v. The Commonwealth.

The conflicting approaches of strict textualism and a purposive interpretation or generous interpretation is nicely brought to the fore here – courts taking a textualist approach may decline review on the basis of such implied rights while courts adopting a more “purposive” interpretation of the Constitution may seek to ensure that executive action or legislation inconsistent with such implied rights are struck down or quashed. In the absence of case law, whether the power of judicial review extends to implied rights is still an open question in Singapore.

Constitutional Amendments

In Singapore, it appears that the power to judicially review laws does not extend to examining the constitutionality of constitutional amendments passed by the legislature. This may be explained on the basis that in enacting constitutional amendments, the legislature is exercising its “constituent power” and the courts have no jurisdiction to review over such power.

The Malaysian Federal Court in Phang Chin Hock v. Public Prosecutor made a distinction between the exercise of “constituent power” and “legislative power” by the Parliament. This was done to resolve the conundrum created by Article 4(1) and Article 159 (Malaysia’s equivalent to Article 4 and 5 of the Singapore Constitution). Article 4 of the Constitution voids any law enacted by the Legislature if it was inconsistent with the Constitution. On the other hand, Article 159 allows the Legislature to amend the Constitution provided the required majority was obtained. Interpreted literally, Article 4 would render Article 149 otiose as any law enacted to amend the Constitution will necessarily be inconsistent with the terms of the extant Constitution. To deal with this inconsistency, the Federal Court relied on the rule of harmonious construction to give effect to both provisions. In doing so, the court distinguished between Acts amending the Constitution and ordinary legislation enacted in the ordinary way. Only legislative acts of the latter would fall within the meaning of “law” in Article 4.

Singapore courts have not had the occasion to consider whether a constitutional amendment is “law” within the terms of Article 4. However, Professor Thio Li-ann has suggested that the Malaysian approach would be appropriate in the Singapore context, given the near-identity of the relevant constitutional provisions. Thus, where the Parliament exercises its legislative powers and enacts ordinary legislation inconsistent with the Constitution, Article 4 allows the courts to declare the legislation void. However, where the Parliament exercises its constituent power under Article 5 to amend the Constitution, the courts will be precluded from reviewing such amendments as they do not fall within the meaning of “law” in Article 4. As long as all conditions precedent and subsequent prescribed by the Constitution are satisfied, the constitutional amendment will be valid notwithstanding the fact that it is inconsistent with the Constitution.

Basic Features Doctrine

As seen above, if the Malaysian position is accepted in Singapore, the Judiciary is precluded from reviewing constitutional amendments even if they are inconsistent with the Constitution.

However, a different conclusion may be reached if the basic features doctrine is adopted. This doctrine was first recognised by the Indian Supreme Court in Kesavananda Bharati v. The State of Kerala. It posits that there are certain implied basic features of the Constitution that are not amenable to changes and amendment by Parliament. The doctrine serves as a safeguard against the potential abuse of the legislature’s constituent power. Chief Justice Sarv Mittra Sikri held that the basic structure of the Indian Constitution included the supremacy of the Constitution; the secular character of the Constitution; the republican and democratic form of government; the separation of powers between the legislature, the executive and the judiciary and the federal character of the Constitution.

The basic feature doctrine has been expressly rejected by the Singapore High Court in Teo Soh Lung v. Minister for Home Affairs. Fredick Arthur Chua J held that Article 5 did not place any express limitations on the Parliament’s power to amend the Constitution. The learned judge added that if courts have the power to impose limitation on the legislature’s power of constitutional amendments, they would be usurping Parliament’s legislative function contrary to Article 58 of the Constitution. Chua J also considered the differences in the making of the Indian and the Singapore Constitution. He concluded that the Singapore Parliament’s power to amend the Constitution cannot be said to be limited in the same way as the Indian Parliament’s power to amend the Indian Constitution.

It bears to note that on appeal, the Court of Appeal held that it was unnecessary to consider whether the amendments to the Constitution are invalid as violating the basic structure of the Constitution. Thus, the Court of Appeal had left the door open for the acceptance of the doctrine as part of Singapore law in future cases. If so, the Judiciary’s role in constitutional review would extend beyond ordinary legislation. Constitutional amendments which violated the basic features of the Constitution would also be amenable to judicial review.

Further reading

Articles and websites

• Pillai, K. Muralidharan; Luo, Qinghua (2009), "Revisiting the High Court's Revisionary Jurisdiction to Enhance Sentences in Criminal Cases", Singapore Academy of Law Journal, 21: 135–160.
• Singapore court system, Law Society of Singapore, retrieved 26 December 2009.
• Tan, Eugene; Chan, Gary (13 April 2009), "The Judiciary", The Singapore Legal System, Singapore Academy of Law, retrieved 26 December 2009.

Books

• Chan, Helena Hui-Meng (1995), "The Judiciary", The Legal System of Singapore, Singapore: Butterworths Asia, pp. 41–68 {{citation}}: Cite has empty unknown parameter: |1= (help).
• Kwek, Mean Luck [et al.], eds. (2006), Hall of Justice: Supreme Court Singapore, Singapore: Supreme Court of Singapore, ISBN 978-981-05-5356-2 {{citation}}: |first= has generic name (help)CS1 maint: multiple names: authors list (link).
• Leyland, P., & Anthony, G. (2013). Textbook on Administrative Law. 7th ed Oxford, U.K. ; Oxford University Press, c2013, ISBN 978-0-19-960166-0.
• Leyland, P., & Anthony, G. (2009). Textbook on Administrative Law. 6th ed Oxford, U.K. ; Oxford University Press, c2013, ISBN 978-0-19-921776-2.
• Tan, Kevin Yew Lee (2011), "Without Fear or Favour: The Judiciary", An Introduction to Singapore's Constitution (rev. ed.), Singapore: Talisman Publishing, pp. 107–131, ISBN 978-981-08-6456-9 (pbk.).
• Tan, Kevin Yew Lee; Thio, Li-ann (2010), "The Judiciary", Constitutional Law in Malaysia and Singapore (3rd ed.), Singapore: LexisNexis, pp. 505–630, ISBN 978-981-236-795-2 (hbk.).
• Thian, Yee Sze; Chong, Chin Chin; Lim, Sharon (2002), In Session: Supreme Court Singapore: The Building, her Heritage and her People, Singapore: Supreme Court of Singapore, ISBN 978-981-047-671-7.

External links

• Official website of the Parliament of Singapore
• Official website of the Supreme Court of Singapore
• Singapore Statutes Online