User:Sgconlaw/Judicial deference

Judicial deference describes the courts' practice of accepting the decisions of the legislature and executive as authoritative. Such practice may be justified on the grounds of legitimacy-based deference or expertise-based deference. In the former, judicial deference is justified on the ground that the decision-maker has superior democratic credentials compared to the courts. Under the Westminster system of constitutional government, the judiciary is hesitant to intrude into the powers of the legislature and the executive. In the latter, judicial deference is justified on the ground that the judiciary may not have the requisite information and expertise to decide on a matter competently.

Judicial deference has also been described as a range of judicial techniques which the courts use to increase the discretion allowed to the legislature and executive. In administrative law, courts generally decide on the legality and not the merits of a decision taken by a public body. In constitutional law, courts have exercised judicial deference in certain ways, such as applying a presumption of constituitionality and taking a purposive approach in interpreting the Constitution.

Introduction

Judicial deference is a concept in which courts treat the decision of the legislature or the executive as authoritative. It can also be described as a range of judicial techniques which the courts use to increase the discretion allowed to the legislature and executive. In the ruling and administration of a country, the issues of law, policy and public interest are usually interwoven together. As such, courts are hesitant in making decisions that will affect issues of public policy and other matters of political judgment that lie with the legislature or the executive.

In administrative law, judicial deference is typically manifested by the courts limiting itself to examining the legality and not the merits of a decision. In Singapore, the courts will only intervene where there is illegality, irrationality or procedural impropriety in the process of decision making, while not reviewing the merits of the decision. In the United Kingdom ("UK"), there is an additional ground where the decision made has to be proportionate to the objective sought.

The degree or likelihood that the court will defer depends on the issue in question. In an issue concerning high policy or national security, the court is more likely to defer, while the court is less likely to do so in an issue that affects the fundamental liberties of individuals. Courts may also defer to the other branches of government if those branches have better expertise in making the decision. Courts may even decide that an issue is non-justiciable and refuse to intervene.

The justifications for judicial deference can be categorised into two different groups: legitimacy-based deference and expertise-based deference.

Legitimacy-based deference

One justification of judicial deference is that the decision-maker should enjoy a degree of latitude on account of its superior democratic credentials. In a representative democracy, the elected legislature has the mandate of the people. Given that the legislature holds the democratic power, courts will not assume the place of the primary decision maker. This justification has been called the “principle of electoral accountability” or the “democratic principle.”

Furthermore, under the Westminster system of constitutional government, sovereign power of the State is distributed among three organs of state – the legislature, the executive, and the judiciary. Each of them holds distinct and independent powers and areas of responsibilities. This entails that each constitutional organ should act within the limits of its own powers. As such, it is not the task of the judiciary to usurp the function of the executive by substituting its decision for the authority designated by law to decide the matters in question. Rather, the judiciary should defer to the empowered authorities and the decisions made by them. For example, in Nottinghamshire County Council v Secretary of State for the Environment, Transport and the Regions, a case which involved public financial administration, the court refused to intervene because the matter fell under the political judgment of the legislature and executive.

The degree to which courts defer to the legislature or executive based on its legitimacy partly depends on the issue in question. In A v Secretary of State for the Home Department, the House of Lords stated that “[t]he more purely political … a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision.” Courts have stated that issues such as national security are not appropriate to be dealt with judicially, leaving such issues to the legislature. The courts also justify their deference on such issues on the reason that other branches of government have more expertise in dealing with them.

In the UK, courts have shown more willingness to deal with controversial issues relating to human rights. In R v Secretary of State for the Home Department, ex parte Bugdaycay, the court stated that in reviewing the reasonableness of an administrative decision that would affect an individual’s right to life, the court will look at the decision with “the most anxious scrutiny.”

However, in Singapore, courts may defer to the legislature even when human rights are concerned. In Tan Eng Hong v AG, the High Court refused to strike down a law criminalising male homosexual acts. In deciding whether the provision was so absurd or arbitrary as to offend Article 12(1) of the Constitution of the Republic of Singapore (“the Constitution”), which protects equality and equal protection before the law, the court held in the negative as “the Legislature has articulated a clear social purpose for which s 377A is its chosen and fitting mechanism for implementation.”

Expertise-based deference

The second justification for judicial deference is that a primary decision-making body may possess superior expertise relative to the courts. In such situations, deference by the judiciary takes effect in the form of ascribing particular weight to the decision maker’s view. The greater the expertise possessed by these bodies, the greater the expectation that they are more likely to arrive at the correct decision.

In the Singapore case of Lee Hsien Loong v Review Publishing Co Ltd, Sundaresh Menon JC (as he then was) laid down four relevant principles with regard to ascertaining the reviewability of a decision-making process. The first two relate to deference on the grounds of expertise. First, he considered that justiciability turns upon the subject matter in question. Where the executive has access to the best materials available to resolve the issue, “its views should be regarded as highly persuasive, if not decisive.” Second, courts should shy away from reviewing the merits of decisions involving matters of government policy or intricate balancing of policy considerations because judges lack training, experience, and access to material. As such, they are ill-equipped to adjudicate these cases.

Expertise-based judicial deference is particularly evident in certain categories of cases, such as those involving national security; “polycentric” questions, which may require choosing between two possible courses of action and other matters of high policy. For example, in Belfast City Council v. Miss Behavin’ Ltd, a company running a sex shop sought judicial review for the city council’s decision not to grant it a licence. In the judgment delivered by the House of Lords, Baronness Hale considered that she was “bound to acknowledge that the local authority is much better placed than the court to decide whether the right of sex shop owners to sell pornographic literature and images should be restricted – for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights of others.”

However, there are limits to expertise-based judicial deference. For example, deference based on expertise is appropriate only where the matter in question concerns issues that call for expertise. Furthermore, even if this threshold requirement is satisfied, the court should defer to the expert decision-making body only to the extent that the latter’s expertise is demonstrated by the provision of evidence or argument capable of surviving scrutiny. In other words, there can be no presumption of superior institutional competence.

Judicial techniques

Judicial deference can be described as a range of judicial techniques which the courts may use to increase the discretion allowed to the legislature and executive. These techniques can be seen in both administrative law and constitutional law.

Administrative Law

Subjective approach in reviewing ministerial discretion

One possible example of judicial deference is the adoption of a subjective approach in reviewing ministerial discretion.

Initially, the Singapore courts adopted an entirely subjective approach which precluded judicial review of preventive detention orders. In the case of Lee Mau Seng v Minister for Home Affairs, Singapore (“Lee Mau Seng”), the applicant argued that his order of detention under the Internal Security Act (“ISA") was illegal or unlawful. The court applied a subjective test, which excluded judicial enquiry into the sufficiency of the grounds to justify the detention under the ISA.

The Court of Appeal subsequently departed from the reasoning in Lee Mau Seng. In the case of Chng Suan Tze v Minister for Home Affairs (“Chng Suan Tze”), the Court of Appeal held that ministerial discretion could be objectively proved and was hence reviewable. The scope of the review would be limited to the normal judicial review principles of illegality, irrationality or procedural impropriety.

Following the decision in Chng Suan Tze, Parliament passed several amendments to the Constitution and the Internal Security Act, which purported to oust judicial review of ISA cases, reinstating the subjective approach used in Lee Mau Seng. However, the objective test could still be applied by the courts with regard to any other executive decisions, as affirmed in the case of Yong Vui Kong v AG.

Wednesbury unreasonableness

The Wednesbury doctrine is inherently deferential. In applying it as a ground of judicial review, courts do not make decisions on the merits of the matter. Rather, these matters are left to the public authorities. Wednesbury unreasonableness applies to a decision which is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. The standard of Wednesbury unreasonableness is so high a ground of review that it is almost impossible to prove on its own.

The Singapore courts have recognised that decision makers can, in good faith, arrive at quite different decisions based on the same facts; there is an inherent measure of latitude in assessing reasonableness. Such an approach can be seen in the following cases:

First, in the case of Re Siah Mooi Guat, the applicant received a letter from the Controller of Immigration stating that her presence in Singapore had been declared unlawful and her re-entry permit and employment pass had been cancelled on the ground that she was a prohibited immigrant. The applicant lodged an appeal against the decision to the Minister for Home Affairs but the Minister rejected her appeal. The applicant raised the ground that the Minister’s decisions were so unreasonable that it was open to review by the courts under Wednesbury principles. However, this submission was rejected because she could not prove that the Minister had done her wrong.

Second, in the case of Re Wong Sin Yee, there was an application for judicial review of the applicant’s detention under the Criminal Law (Temporary Provisions) Act. The Minister asserted that the applicant had been involved in criminal activities, and that it was in the interest of public safety, peace and good order that he be detained. The judge held that such issues were not suitable for the judicial process. As such, he declined to hold that the Minister’s exercise of discretion was irrational in the Wednesbury sense.

Proportionality

Proportionality, a doctrine adopted in the UK, works on the assumption that administrative action ought not to go beyond what is necessary to achieve its desired result. This is often understood to bring courts much closer to reviewing the merits of a decision, which may be a less deferential approach. In Singapore, although the courts have not foreclosed the possibility of adopting such a principle in the appropriate case, proportionality as a ground for judicial review is not well established. The court is reluctant to be involved in a decision on the merits because this would be a usurpation of power and responsibility that rightly belongs to the executive.

In Chan Hiang Leng Colin v Minister for Information and the Arts, the judge noted that there would be difficulties if proportionality were to be recognised as a ground for judicial review. Firstly, Parliament has entrusted the discretion with the decision makers and to interfere with that discretion would be an abuse of the judges’ supervisory jurisdiction. Secondly, judges are not equipped by training or experience to decide the answer to an administrative problem where the scales are evenly balanced, but they have a much better chance of reaching the right answer where the question is put in a Wednesbury form.

Relevant & irrelevant considerations

A decision may be challenged because the decision maker has failed to take into account all relevant considerations and/or to disregard irrelevant considerations. When this happens, the court is to enquire whether all relevant considerations have been taken into account by the decision maker and irrelevant ones have been ignored.

The courts draw a clear distinction between the question of whether something is a material consideration and the weight it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the decision maker and not for the court. Drawing such a distinction possibly shows the court’s deference to other institutions.

Justiciability

The doctrine of justiciability may be seen as a technique of judicial deference. In Lee Hsien Loong v Review Publishing Co Ltd, the Singapore court held that there are areas of executive decision-making that are, and should be, immune from judicial review. These include matters of high policy such as dissolving Parliament, the conduct of foreign affairs, the making of treaties, matters pertaining to war, the deployment of the armed forces and issues pertaining to national defence.

Apart from issues of foreign affairs or national defence, there are other areas that the Singapore court will find nonjusticiable. These include cases concerning the interpretation of international treaties operating solely on the international plane, or where the legislature has made it clear that the question is reserved to the executive to answer.

Constitutional law

Presumption of constitutionality

The starting point for constitutional challenges is a “strong presumption of constitutional validity.” This shifts the burden of proof from the government to the challenger in a constitutional challenge to a law, requiring them to prove that a statute is unconstitutional. The courts appear to defer to the legislature on the basis that the legislature “understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds.”

This presumption has the following two effects. First, the court prima facie leans in favour of constitutionality and supports the impugned legislation if it is reasonable to do so. Second, it is for the party who attacks the validity of a piece of legislation to place relevant materials and evidence before the court.

The presumption of constitutionality will not be lightly displaced. To rebut it, the person challenging the law has to adduce some material or factual evidence to show that it was enacted arbitrarily or had operated arbitrarily. Additionally, unless the law is plainly arbitrary on its face, merely postulating examples of arbitrariness would ordinarily not be helpful in rebutting the presumption.

Definition of rights

Singapore courts appear to define rights more narrowly compared to other jurisdictions, deferring propositions to broaden the scope of rights to the legislature. This may be seen from the following examples.

Meaning of “right to life"

In Singapore, Article 9(1) of the Constitution protecting the right to life has been defined as “the most basic of human rights.” Notably, this definition is narrower than those taken in other courts, such as the Indian courts. The Indian Supreme Court has expanded the scope of the “right to life” to include the right to education, health, medical care and freedom from noise pollution, but this has been rejected by the Singapore Court of Appeal.

Meaning of “personal liberty”

Singapore courts have also taken a narrow view to “personal liberty” under Article 9(1) of the Constitution. “Personal liberty” refers merely to liberty against unlawful incarceration or detention, and does not include the liberty to contract. This appears to be narrower than the views of “personal liberty” in other nations. For example, in India, it was held in Maneka Gandhi v Union of India that “personal liberty” should not be read in a narrow and restricted sense, and the court incorporated a due process requirement into India’s equivalent of Article 9.

Meaning of "right to counsel"

In Singapore, one’s right to counsel is provided for in Article 9(3) of the Constitution, which states that a person “shall be allowed to consult and be defended by a legal practitioner of his choice.”

In Rajeevan Edakalavan v PP, the Singapore High Court took a narrow view to the right to counsel. It rejected the view that the right to counsel includes a right to be informed of one’s right to counsel, stating that “there is no obligation imposed on the relevant authority to inform and advise the person under custody of his right to counsel.” Moreover, the court explained that reading this additional right into Article 9(3) would be “tantamount to judicial legislation.”

Additionally, the court stated that any proposition to broaden the scope of rights “should be addressed in the political and legislative arena” and not in court. Also, a judge is not supposed 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.”

This view is in direct contrast to the view that is taken internationally. Under Principle 17 of the “Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,” the United Nations General Assembly agreed that a detained person, promptly after arrest, should be informed of his entitlement to have the assistance of a legal counsel.

Narrow standing

To assert one’s constitutional claims, one first needs to have standing. An adoption of a narrow standing would restrict the number of applicants for constitutional challenges, which would grant the government more discretion in their decisions.

Singapore courts appear to adopt a narrow test for standing in constitutional challenges. The law on standing was summarised in the case of Jeyaretnam Kenneth Andrew v AG (“Jeyaretnam”). There must first be a public duty which has been breached; without such a breach, there can be no question of whether an applicant has standing or not. This public duty must generate correlative private rights or public rights before the applicant is granted standing.

The court in Jeyaretnam also noted that in the rare case where a non-correlative rights-generating public duty is breached and the breach is of sufficient gravity such that it would be in the public interest for the courts to hear the case, an applicant sans rights may be accorded standing at the discretion of the courts. However this approach would be a “very narrow avenue which concerns only extremely exceptional instances of very grave and serious breaches of legality.”

The Singapore courts’ approach to standing appears to contrast with the approach taken by the UK courts. In R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd, the court allowed the application even though none of the members from the pressure group had a direct personal interest in the matter.

In arriving at this decision, the judge took into account the following factors: the merits of the challenge, the importance of vindicating the rule of law, the importance of the issue raised, the likely absence of any other responsible challenger, the nature of the breach of duty against which relief was sought, and the prominent role of the applicants in giving advice, guidance and assistance with regard to aid.

Purposive Approach

Another possible example of judicial deference would be the purposive approach used by the courts to interpret the Constitution. Such an approach ensures that the courts do not frustrate the will of lawmakers.

In Singapore, under s 9A of the Interpretation Act, the courts, in interpreting the law, have to adopt an interpretation that would promote the purpose or object underlying the written law. This is regardless whether that purpose or object is expressly stated in the written law or not. In addition, it was affirmed in Constitutional Reference No 1 of 1995 that a purposive approach should be taken over a strict literal approach in constitutional interpretation to give effect to the intent and will of Parliament.

In Chee Siok Chin v Minister of Home Affairs, in interpreting Article 14 of the Constitution, the term “necessary and expedient” was taken to give Parliament an “extremely wide discretionary power.” There could also be no questioning of whether the legislation was reasonable. All that the Government needed to show was a factual basis on which Parliament has considered it “necessary and expedient” to do so, and relevant evidence could be obtained from “the impugned Act, relevant Parliamentary material as well as contemporary speeches and documents.”

Criticisms

There have been some criticisms surrounding judicial deference. First, courts should not justify deference based on the legitimacy of the other institutions. In the UK, such deference has been criticised, at least in the context of the Human Rights Act 1998 (“HRA”). In the case of Huang v Secretary of State for the Home Department, the House of Lords stated that the HRA charges the courts with protecting fundamental rights. In such cases involving fundamental rights, even if the courts choose to defer to another branch of government, it should be due to their relative institutional competence or their expertise, and not their democratic legitimacy.

Second, reasons such as expertise-based deference are only “relevant in so far as they generate convincing arguments – good reasons for curtailing rights grounded in reasonable policies and supported by clear evidence.” Purely submissive deference to the decision maker without true examination of his expertise “divests the court of its role as [an] independent scrutineer.” To address this criticism, it has been proposed that judicial deference should only be exercised for properly considered reasons to avoid the “abdication of judicial responsibility.”

Third, where a decision has been made by the legislature, the courts should not defer too readily. This is because it is uncommon for the legislature to have deliberated the constitutionality of the legislative provisions. Even if the legislature did consider this matter, the executive will prevail most of the time, with arguments being supported according to party strength as opposed to the scrutiny of the basis for the legislative provisions. However, this concern may be less relevant in Singapore, as public authorities will usually consult the Attorney General’s Chambers on the legality of their decisions before enacting policies that encroach on the rights of individuals.

Fourth, instead of deferring to the legislature, courts should be provided with the requisite information and hear from expert witnesses to be better equipped in cases that they lack expertise in. This is because the role of the judiciary is to ensure that the enactment of legislatures adheres to the law-making process.