Judicial review in Singapore (Part 1): Introduction, independence of judiciary system, 6 prominent cases.

*All content shared are subjective to the diverse views of those who have been quoted, and should not be representative of Offbeat Perspective views towards the matter*

This post is a Part 1 prelude to Judicial review in Singapore (Part 2): judicial review exclusions, and ISA’s arbitrary powers?.

1Quote #1

“..the judiciary “must stand firm as the last line of defence”. “Judicial review is the sharp edge that keeps government action within the form and substance of the law,”..the commitment of the executive to comply with and abide by the law as pronounced by the judiciary is critical to the rule of law and good governance..

..the robustness of a nation’s rule of law framework depends greatly on how the other branches view the judiciary, and whether it in turn is able and willing to act honestly, competently and independently.”

– Judiciary ‘the sharp edge that keeps govt action within rule of law’ (TODAY, 24 May 2016)

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Content Page

  1. What is a judicial review?
  2. How independent is the judiciary from the executive powers? *Both sides of the coin*
  3. How an ombudsman could benefit Singapore?
  4. 6 prominent judicial review sagas in Singapore *MUST READ*

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When citizens take the Government to court – Tham Yuen C (ST, 25 Jan 2014):

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Photo credit: ST

[What is a judicial review?]

What is it?

A review of the acts and decisions of public authorities, by the judiciary – judges and courts of law. In Singapore, this is the High Court and can involve the Court of Appeal. The court reviews if the acts or decisions are lawful. The purpose of judicial review is to ensure that public authorities do not overstep or abuse their powers. 

Who is subjected to it?

Decisions of the Government and its agencies – ministries, ministers and statutory boards – can be challenged through this process. In Singapore, private bodies that exercise public law functions, such as the Singapore Exchange, can also be subject to such review.

Who can launch a review?

Not just anyone can launch a challenge – a person must have what is termed “standing”. That means they must be personally affected by the decision being challenged and deemed to have a sufficient interest in it.

What happens during a judicial review?

The courts have to grant leave for the review to be heard. If leave is not granted – for example, if there are no grounds for review – the case will be thrown out. Once a review is allowed, the decision can be challenged on three grounds:

I. It was illegal. Such cases are typically those in which the public authority is alleged to have acted beyond the powers granted by the law, or misunderstood the law.

2. It was irrational – the decision is so unreasonable no sensible authority could have arrived at it.

3. Procedural impropriety- a decision is procedurally unfair.

In a judicial review, the court is not concerned with the merits of a decision, but with how a decision was made and whether the right procedures have been followed.

What happens next?

When a challenge is successful, the courts can stop a decision if it has not been made, or quash it if it has been. They can also compel the public authority to redo what it did, this time without contravening the laws , or award compensation. The court can also make a declaration on the legal position of both parties – more common in constitutional challenges. 
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Quote #2

“Under the Constitution, the three branches of government are established under separate chapters, implicitly endorsing the separation of powers..(whereby) the power of government is separated between three branches..the Executive, the Legislature, and the Judiciary. Each..branch..has control over a different domain and operates independently of each other.

..to give effect to the principle of constitutional supremacy, the courts have to exercise their powers of judicial review to ensure that legislations are not repugnant to the doctrines of rule of law and separation of powers, and are also not inconsistent with the Constitution. 

..The courts have internal restrictions on their scope of judicial powers and will decline jurisdiction where they do not have the requisite expertise or where it is inappropriate for the courts to intervene. Ultimately, the courts should not develop an adversarial relationship with the Executive, but rather, adopt the “green-light” doctrine and focus on the promotion of good administrative practices.”

– Judicial Review in Singapore (Singapore Law Review, 30 Sept 2013)

1[How independent is the judiciary from the executive powers?]11.jpg

According to Shared Responsibilities, Unshared Power: The Politics of Policy-Making in Singapore (Ho Khai Leong, Eastern Universities Press, 2003):

“The important issue to note in this milestone case is that the Court of Appeal established the principle that government actions and discretions are subject to discipline by the judiciary. 

In 1989, a constitutional amendment was passed to prohibit judicial review of the substantive grounds of detention under the ISA and anti-subversion laws. In effect, acts done or decisions made by the President of Singapore or Minister of Home Affairs pursuant to the ISA are not subject to judicial review.

This amendment greatly limits judicial power and reduces judicial independence..the power to check the Executive, as the Court initially understood it, was curtailed further by the amendment by the legislature.” (Pg 307)

“Personal overlapping between judicial officers, especially Supreme Court judges, and the PAP and its leaders exists. However, it has been observed that these connections generally do not appear to influence the judiciary’s independence.”

“While libel laws allow any citizens, politicians included, to clear their reputations in cases of disputes, at issue is both the frequency of this practice and consistent awards in favour of government plaintiffs. All these have..led to a perception that the judiciary reflects the views of the executive in politically sensitive cases.”

Whether intentional or unintentional, the political outcome of the judicial process has discouraged public criticism of government leaders and policies, and political participation. A contemporary inactive citizenry is the result of the public perception that legal actions would fall upon those who are not careful. The Singapore court may not be a “political” court, but neither it is a “politicised  institution”. But of these manoeuvrings lead to the judcialisation of politics – where political disputes and political questions are manifested in legal processes – in Singapore, it may not work favourably for Singapore’s political development.”

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According to Singapore Chronicles – Law (2015):

The independence of the Judiciary

“There are various protections entrenched to insulate a judge from external influence, interference and pressures. For example, Article 98 (1) of the Constitution provides a judge of the Supreme Court with security of tenure until age 65. Article 98 (8) provides that the remuneration and other terms of office of a judge may be altered to his disadvantage after his appointment.

A common example used by critics to support the allegations that the judiciary is not independent is the Government Ministers’ often successful use of defamation and contempt of court proceedings against political opponents in the courts. This example is, however, misplaced. The courts are simply applying the law as stated in the constitution, which does not protect the right to defamatory speech, to the facts before them. 

Ironically, in calling for the courts to disregard the constitutional bargain, critics are actually arguing against the rule of law. The same might be said about the contempt of court proceedings, where Singapore has preserved such proceedings to maintain the public’s trust in the Judiciary’s ability to administer justice fairly.

Another example used to allege the non-independence of the Judiciary is that judges are beholden to the Government for their appointment and reappointment and are therefore not independent. However as CJ Tan has said, this does not reflect reality. In CJ Chan’s first tenure as a High Court Judge, he heard many public law cases and decided equally between the government and the individual. 

This did not stop him from being appointed as Singapore’s third Chief Justice later on. Moreover, since judicial decisions are publicly available, it is unlikely that appointments will be made to secretly test a candidate’s willingness to decide in favour of the Government other than in accordance with the law.” 

1How an ombudsman could benefit Singapore ? (TODAY, 13 Jul 2016)  1

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Photo credit: TODAY

“How should the legislature, comprising Parliament and the President, together with the judiciary, interact with the executive to hold it accountable in a transparent and independent manner? The traditional separation of power doctrine, consisting of these three institutions, needs to include an ombudsman.

Found in more than 90 countries in various forms, an ombudsman essentially has three key characteristics. First, it is an independent body led by a public official and reports to Parliament directly.Second, it receives complaints from aggrieved persons against public agencies. Third, it has the power to investigate, recommend corrective action and issue reports, all done in the public domain, but does not have the authority to impose its decision.

While the Worldwide Governance Indicators compiled by the World Bank have consistently ranked Singapore close to the top in “effective government”, “rule of law” and “control of corruption”, the Republic is only on the 45th percentile on “voice and accountability”.

This suggests that Singapore needs an ombudsman because the current mechanisms to review a government agency’s decision may have certain limitations or are not independent and transparent enough.

While Singapore’s judiciary is well-respected and independent, it has two limitations. First, a court case is usually expensive and lengthy, which dissuades average people from suing a public agency over what they might feel is an unjust decision.

Second, a judicial review only covers “procedural fairness”, which ensures that all reasonable steps were taken by the public agency in arriving at that decision, but it does not review the merits of the decision itself.

..an ombudsman in Singapore would be similar to the AGO. It would be established as a separate organ of state, publicly funded, and would publish an annual report that would be made public and submitted to Parliament via the President..our politicians..have, at times, had to address in Parliament specific incidents involving government agencies.

An ombudsman should be able to investigate such incidents in the first instance and recommend corrective action where necessary, while the Government focuses on developing sound public policy. The Government could then consider any policy recommendations made by the ombudsman in its annual report.

In a similar vein, an ombudsman could also quash unsubstantiated claims and vicious attacks on the public service by conducting a transparent and independent investigation into any allegation.

Ultimately, establishing an ombudsman should improve the effectiveness of the public service. More importantly, however, its transparency and independence will help build trust in the Government.1

[6 prominent judicial review sagas in Singapore]

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Case study #1

*Hougang SMC resident who commenced judicial review proceedings in the High Court to compel the Government to hold a by-election*

The effectiveness of the Judiciary in checking the Executive will be curtailed whenever the scope of judicial review of executive decisions are being reduced or eliminated (e.g. section 8B(2) of the Internal Security Act).

The effectiveness of Civil Society in speaking out for the protection of fundamental liberties will be curtailed so long as freedom of speech is circumscribed by legislation mandating the requirement to obtain a licence to speak publicly, assembly or gather in public (Public Order Act), restricting the formation of societies (Societies Act), vigilant, vigorous enforcement of defamation laws by political appointment holders (here), and so forth.”

– Jeannette Chong-Aruldoss – Exploring the Extent of Executive Discretion (TOC, 28 Apr 2012)1

Case Study #2

*Chng Suan Tze v Minister for Home Affairs, 1988 (SMU, 25 Jan 2014)*

This was a landmark case because the courts held that they had the right to check if government authority has exercised its power correctly, including the government’s discretion to hold people without trial under the Internal Security Act.

It resulted in a change to the ISA and the Constitution to limit the court’s power in reviewing this discretionary power of detention. Parliament amended the ISA and the Constitution, stipulating, among other things, that judicial review of the ISA was limited to questions of procedural compliance. 

However, the principle from the court – of the judiciary’s power to review the exercise of governmental actions – remains current today.

“The important issue to note in this milestone case is that the Court of Appeal established the principle that government actions and discretions are subject to discipline by the judiciary. 

In 1989, a constitutional amendment was passed to prohibit judicial review of the substantive grounds of detention under the ISA and anti-subversion laws. In effect, acts done or decisions made by the President of Singapore or Minister of Home Affairs pursuant to the ISA are not subject to judicial review. 

This amendment greatly limits judicial power and reduces judicial independence..the power to check the Executive, as the Court initially understood it, was curtailed further by the amendment by the legislature.” (Pg 307)

– Shared Responsibilities, Unshared Power: The Politics of Policy-Making in Singapore (Ho Khai Leong, Eastern Universities Press, 2003)

Additional read on saga: Wikipedia coverage

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Case Study #3 

Ong Teng Cheong 1994 saga*

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Photo credit: ST

 The legacy of Ong’s presidency was marked by his  determination to test the  custodial powers of the elected presidency. (History.sg, 2011)  In 1994, he questioned the government’s interpretation of the constitution when the latter introduced a bill to revise the veto powers of the president. He then asked for the matter to be referred to a special High Court Tribunal, chaired by the Chief Justice. When the Tribunal ruled in favour of the government, Ong graciously accepted the decision.

“The Supreme Court ruled that the government could amend the powers of Singapore’s president without his permission. It further stated that the president does not have the power to veto a proposed amendment to the constitution..(Alongside the Chng Suan Tze case), (it) suggest that Singapore’s Supreme court was exercising judicial review power, with different consequences.

In the first case, the power to check the Executive, as the Court initially understood it, was curtailed by further amendment by the legislature. The second case illustrates the impact of judicial decision, establishing further the power of the executive..The judicial institution implicitly endorses the notion that only politicians and legislators make public policy, so as to maintain public confidence.”

– Shared Responsibilities, Unshared Power: The Politics of Policy-Making in Singapore (Ho Khai Leong, Eastern Universities Press, 2003)

1Case study #4

*Yong Vui Kong*

Mr Ravi..filed for a judicial review was when he attempted to help condernned drug trafficker Yong Vui Kong delay his execution through a series of court challenges.
Mr Ravi applied for judicial review of clemency proceedings in July 2010, arguing that the President had personal discretion in deciding whether to grant clemency to death-row convicts. The High Court and later the Court of Appeal disagreed.

While these challenges failed, they delayed Yong’s execution long enough for him to benefit from changes to Singapore’s death penalty laws last year. He became the first condemned drug trafficker to be re-sentenced to life in prison and caning, under the new laws that give judges the discretion not to hang drug couriers who have substantively assisted narcotics enforcers. (SMU, 24 Jan 2014)

1Case study #5 

*Tan Eng Hong v Attorney-General, 2012 (SMU, 25 Jan 2014)*

The Court of Appeal ruled that Mr Tan Eng Hong could challenge the constitutionality of Section 377A of the Penal Code, which criminalises sex acts between men, based on an “arguable violation of his constitutional rights”. Although this case involved only Mr Tan, the ruling paved the way for future challenges by other gay men against the law.

One recent case of individuals petitioning for “rights” to be recognised in a constitutional challenge is that of gay couple Gary Lim and Kenneth Chee. They brought a suit claiming that Section 377A of the Penal Code – which outlaws homosexual acts – violates their rights to equal treatment under Article 12 of the Constitution.

The High Court declared the Jaw constitutional. with justice Quentin Low ruling “equality before the law and equal proteclion of the law… does not mean that all persons are to be treated equally, but that all persons in like situations are to be treated alike”. (SMU, 25 Jun 2014)

The Court of Appeal said as much when it threw out a challenge brought by Reform Party chief Kenneth Jeyaretnam, who sought to block a US$4 billion (S$5 billion} loan from the Singa- pore Government to the International Monetary Fund. The court had found that he did not have the standing to challenge the decision, as he did not have any public or private rights to protect. Mr jeyaretnam was al- so ordered to pay legal costs.

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Quote #3

Judicial review is the means by which legal rights are protected and good governance enforced..in public administration by striking down unlawful administrative decisions. In Singapore, it includes reviewing legislative acts for unconstitutionality, in view of the doctrine of constitutional supremacy under the Constitution.

The basic principle in constitutional and administrative judicial review is the principle of legality, which is based on the rule of law. It requires the Government to act in accordance with the law. An Act of Parliament must conform to the Constitution; an executive action must also conform to both the written law and the common law principles of natural justice.

– Clearing the air on judidal review (Chief Justice Chan Sek Keong edited speech to SMU second-year Law students)

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Part 2 follow-up to this post: Judicial review in Singapore (Part 2): judicial review exclusions, and ISA’s arbitrary powers?.

Thank you for reading Offbeat Perspective’s article:)

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