User:Sgconlaw/Threshold issues in Singapore constitutional law

Standing

Kenneth Jeyaretnam, Secretary-General of the Reform Party, alleged that the Singapore Government contravened Article 144 of the Singapore Constitution with respect to a loan made by the Government to the International Monetary Fund. His claim failed in both the High Court and Court of Appeal of Singapore.

Introduction

Standing, or locus standi (Latin for "a place to stand"), is a threshold requirement that an applicant must satisfy before he may bring an action for judicial review. The rationale is to discourage "simple cases" that are groundless or hopeless, and prevent "wasteful use of judicial time".

Historically, an applicant had to show different locus standi requirements depending on whether the remedy sought was a prohibiting order, quashing order, mandatory order or declaration. However, the Singapore Court of Appeal in Eng Foong Ho v. Attorney-General unified the standing requirements such that they would be the same across the different remedies sought, regardless of their historical roots.

Point of crystallisation

Despite locus standi being termed a "threshold requirement", an applicant's standing does not crystallise at the point when proceedings are initiated. It remains subject to review until the courts arrive at a final determination. Therefore, the court still has the discretion to reassess the case for the applicant's standing should the factual basis for an application change whilst it is being heard.

Test for standing

In relation to the law on locus standi in Singapore, the very first requirement is that there must be a breach of public duty. Without such a breach, no question of whether an applicant has standing can arise.

Further, it is necessary to distinguish between public and private rights which arise from the relevant public duty. Chao Hick Tin JA stated in Vellama d/o Marie Muthu v. Attorney-General ("Vellama"), that "[a] public right is one, which is held and vindicated by public authorities, whereas a private right is one, which is held and vindicated by a private individual."

Where an applicant possesses either a public or private right that is violated by a decision of a public body, the applicant would seek to establish personal standing to bring a case. However, where an applicant is not directly affected by the decision, but purports to represent persons who are adversely affected by the decision, he would have to establish representative standing. To date, there is no local case law on representative standing.

Private right

The test for locus standi for declaratory relief is established in the local case of Karaha Bodas Co LLC v. Pertamina Energy Trading Ltd ("Karaha Bodas"). It was confirmed to be applicable to declarations for constitutional matters in the recent Court of Appeal case of Tan Eng Hong v. Attorney-General ("Tan Eng Hong") In addition, the Karaha Bodas test provides that the following three elements are to be fulfilled in order for an applicant to possess locus standi:

1. First, the applicant must have a “real interest” in bringing the action.
2. Second, there must be a “real controversy” between the parties to the action for the court to resolve.
3. Third, the declaration must relate to a right which is personal to the applicant and which is enforceable against an adverse party to the litigation.

Applicant must have a real interest

For an applicant to prove real interest in bringing the action, "sufficient interest" must be proven. Whether "sufficient interest" will be found is judged relative to the contested rights in the application. Given the importance of constitutional rights, a citizen will prima facie have a “sufficient interest to see that his constitutional rights are not violated”.

The courts have also rejected the academic opinions of Kevin Y L Tan & Thio Li-ann that “[w]here constitutionally-guaranteed liberties are at stake, locus standi is established without the need to show sufficiency of interest”. Sufficiency of interest still needs to be shown, but this is prima facie made out once there is a violation of a constitutional right.

Real Controversy

One of the requirements for the grant of declaratory relief is that there must be a real controversy for the courts to resolve. In other words, it cannot relate to an an abstract or hypothetical question.

The High Court in Tan Eng Hong v Attorney-General explained that the rationale for this requirement was rooted in the adversarial nature of the common law system and the belief that self-interest motivates parties to diligently prepare and argue their case. Thus, if no rights are contested then no real controversy is said to exist.

However, the requirement of a real controversy is not a jurisdictional requirement. This means that the court may grant standing even if this requirement is not fulfilled. In Tan Eng Hong, Justice V.K. Rajah opined that "There is, undoubtedly, much value in having judicial determinations in appropriate cases on debatable points of law of public interest, not just for the benefit of the parties concerned, but also (and primarily) for the benefit of the public. Clear judicial pronouncements on the law helps to ensure that the rule of law is upheld". This seems to suggest that in certain circumstances, the courts may choose to grant a declaration in abstract where it is in the public interest to do so.

In relation to standing, the exhaustion of alternative remedies is another factor that the court takes into account in deciding whether to grant locus standi in applications for judicial review in Singapore. Where no adequate alternative remedies are available, this might point in favour of relaxing the standing requirements.

The position for locus standi in foreign jurisdictions is similar. In the United States ("US"), one of the conditions for personal standing is that the plaintiff must have suffered an "injury in fact". In the case of Lujan v. Defenders of Wildlife, Justice Scalia stated that there must be an invasion of a legally-protected interest that is concrete and particularised, and actual or imminent, and not merely "conjectural" and "hypothetical".

Violation Of A Personal Right

The Court of Appeal in Tan Eng Hong established that because “every constitutional right is a personal right, demonstrating that a constitutional right has been violated will suffice”. However, the mere fact of citizenship in itself does not satisfy the standing requirement for constitutional challenges. Instead, an applicant must demonstrate a violation of his constitutional rights before locus standi can be granted, to prevent “mere busybodies”, whose rights are not affected, from being granted standing to launch unmeritorious constitutional challenges. Therefore, the underlying rationale for the restrictive test is a fear that an over-lax standing rule would open the floodgates to busybodies.

In Chan Hiang Leng Colin v. Ministry for Information and the Arts, Karthigesu JA held that "A citizen should not have to wait till he is prosecuted before he may assert his constitutional rights." The Court of Appeal in Tan Eng Hong affirmed this, where the court rejected the contention of the Attorney-General of Singapore, that there must be a subsisting prosecution under an allegedly unconstitutional law before it can be asserted that there was a violation of constitutional rights. Violations of constitutional rights may occur not only at the point in time when a person is arrested and/or detained and/or charged under an allegedly unconstitutional law. Furthermore, "[t]he spectre of future prosecution" under an allegedly unconstitutional law could be sufficient to establish a violation of constitutional rights if the applicant was "facing a real and credible threat of prosecution". This is because the process of an applicant waiting to see whether a prosecution will be brought against him and the uncertainty in itself can be said to be a form of suffering.

In addition, the court in Tan Eng Hong held that it is conceivable that the very existence of an unconstitutional law in the statute books suffices to show such violation in an extraordinary case, although no such case has ever been brought to the attention of the Singapore courts. Keeping in mind the need for a balance, Justice V.K. Rajah stressed that each case must turn on its own facts, and courts must remain mindful that lax standing rules could "seriously curtail the efficiency of the Executive in practicing good governance." Singaporean legal academic professor Thio Li-Ann critiques the logic of such an expansive reading of what constitutes a violation of unconstitutional rights. This is because to challenge what might be an existence of an unconstitutional law on the statute books is to engage in abstract review, as no one is directly affected by a law, which is not implemented. Since there is no violation of constitutional rights of the applicant in fact, the only reason applicants can challenge the constitutionality of a statute would be based on their position as citizens.

Public Right

Generally, an applicant who is suing in respect of his right as a member of the public would have to join the Attorney-General in a relator action. This is because the Attorney-General, as the guardian of public interest, is the proper plaintiff in an action seeking to protect public rights. However, a plaintiff can sue without joining the Attorney-General in two cases, otherwise known as the Boyce exceptions:

1. First, where the interference with the public right is such that some private right of his is at the same time interfered with.
2. Second, where no private right is interfered with, but the plaintiff, in respect of his public right, suffers special damage peculiar to himself from the interference with the public right.

Where correlative public and private rights are interfered with simultaneously

The Singapore court will recognise the applicant's standing to seek relief should an alleged interference with a public right also affect his private right. In Jeyaretnam, it was held that the case of Tan Eng Hong was an elaboration of the first limb of the Boyce exceptions. Therefore, in such a situation, the applicable test is the one set out in Karaha Bodas.

The applicant's private right remains even if other potential litigants in the same class also hold identical private rights. As explained by Lord Wilberforce in Gouriet v Union of Post Office Workers, "...A right is none the less a right, or a wrong any less a wrong, because millions of people have a similar right or may suffer a similar wrong..."

Where special damage peculiar to the applicant results from violation of his public right

Where an applicant asserts merely a public right which is shared in common with other citizens, standing accrues only if a nexus between the applicant and the desired remedy is established by demonstrating "special damage". Public rights are shared in common because they arise from public duties which are owed to the general class of affected persons as a whole. As public rights are shared with the public in common, an applicant cannot have standing unless he has suffered some "special damage" which distinguishes his claim from those of other potential litigants in the same class. Therefore this requirement acts as a safeguard; first to prevent multiplicity of actions raised by "mere busybodies" and "social gadflies"; second, to ensure that political issues disguised as legal questions are not ventilated in court.

Despite the importance of the requirement, the courts have not articulated a categorical answer as to what constitutes "special damage". Leading academic, Peter Cane, offers a helpful definition on this elusive requirement. He opined that "[s]pecial damage is either damage to the interest common to all members of the public but quantitatively greater than that suffered by other members of the public, or damage qualitatively different from that suffered by the public, that is, damage to some interest not shared by the public generally."

The position in Australia

In Australia, the "special damage" criterion has been modified to a requirement of "special interest" in Australia Conservation Foundation Inc. v Commonwealth. The case involved a challenge by an environmental interest group to the proposed establishment of a tourist resort. The Australian High Court held that the applicant did not have standing under either Boyce exception. Gibbs J noted the unsatisfactory state of the exceptions listed in Boyce and criticized the misleading words used to formulate them. The learned judge was of the view that "special damage" cannot be limited to actual pecuniary loss, and the words "peculiar to himself" do not mean that only the plaintiff must have suffered damage. Instead the expression "special damage peculiar to himself" should be regarded as equivalent in meaning to "having a special interest in the subject matter of the action". He then explained that "special interest" meant more than a mere intellectual or emotional concern. A person has a special interest within the meaning of the rule only if he is likely to gain some advantage if his action succeeds or to suffer some disadvantage if his action fails. A belief that a particular law should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi.

The position in Singapore

The Singapore Court of Appeal agreed with the clarifications given by Gibbs J and applied it in Vellama. Following the vacancy of the Parliamentary seat for Hougang Single Member Constituency ("SMC"), the appellant - a resident voter of the constituency - instituted judicial review proceedings for a mandatory order requiring the Prime Minister to advise the President of the Republic of Singapore to issue a writ of election on 2 March 2012. The application also sought a declaration on the proper construction of Article 49 of the Constitution of the Republic of Singapore. However, the writ of election for Hougang SMC was later issued on 9 May 2012 and the by-election subsequently held on 26 May 2012. Nonetheless, the appellant proceeded to file her summons seeking the same declaration three days later, although she abandoned her prayer for the mandatory order. The court held that her interest was no more than a general desire to have Article 49 interpreted by the court. It was abundantly clear that the "special damage" or "special interest" exception had not been made out since she was unable to point to any damage which she had suffered or any special interest of hers which had been affected. As such, the appeal was dismissed due to the Appellant's lack of standing.

The Court of Appeal in Jeyaretnam widened the definition of "special damage" exception to include situations where the public body has breached its duties in an exceptionally "egregious manner". The court had acknowledged Lord Diplock's observation that there would be a "grave lacuna" in public law if standing rules formed the sole reason why applicants were denied the right to bring genuinely grave matters of unlawful conduct by public authorities to the court to be vindicated. As such, even where the applicant did not suffer "special damage" or have a "special interest", the court will hear the case if it is satisfied it would be in public interest to do so. The breach of duty must however be necessarily "grave and serious". This requirement arises from the court's desire to discourage recourse for petty claims through judicial review and a surge in public interest litigation.

Notably the court in Jeyeratnam also stated that the role of the court is not to assume an aggressive stance in reviewing the executive and legislature's decisions. Instead, the court is to promote public interest by encouraging good governance through supporting other political processes. This is also known as the green-light approach in Singapore. As such, the court held that making claims based on "grave and serious" breaches is a "narrow avenue".

However, these holdings in Jeyaretnam are obiter dicta. The court held that Mr. Jeyaretnam's application had failed the first stage of inquiry because it did not raise a prima facie question of reasonable suspicion.Additionally, Jeyaretnam may be distinguished from the cases of Vellama and Tan Eng Hong. The former was regarding her public right as a voter of a constituency, which was then without a Member of Parliament, to seek a proper declaration of Article 49 of the Constitution whilst the latter dealt with his private constitutional rights under Articles 9, 12, and 14. In contrast, Mr. Jeyaretnam was unable to assert any rights - private or public - to the alleged breach of duty because this duty was not infringed. His claim was brought under public interest only. The fact that there was no breached duty under Article 144, and the absence of any private or public right meant that Mr. Jeyaretnam could not establish locus standi. Therefore, the holding on locus standi in Jeyaretnam is obiter, and therefore may not be binding on subsequent decisions of the court.

Representative Standing

There is a difference between personal standing and representative standing. Personal standing requires that the applicant suffers special damage and has a special interest, while representative standing does not. Representative standing is accorded to a citizen who challenges an abuse of power in the public interest, as a member of that public, but without necessarily having suffered special damage.

The position in the UK

In the UK, two approaches to the law on representative standing can be distilled from English case law.

The narrower approach

In R v Secretary of State for the Environment, ex parte Rose Theatre Trust Co. (“Rose Theatre Trust Co”), the remains of a historical theatre had been discovered while developing a site in central London. Rose Theatre Trust Company was set up to preserve the remains and make them accessible to the public. The company applied to the Secretary of State for the Environment, for the theatre to be listed as a monument. The Secretary of State declined to list it for reasons, inter alia, that the site was not under threat and the need to balance the desirability of preservation against the need for a city to thrive. The trust company applied for judicial review of the Secretary of State’s decision.

The court stated that the applicant, in a case involving representative standing, must show that he ‘has a sufficient interest in the matter to which the application relates’. The court emphasised that this was a case which concerned a governmental decision that an ordinary citizen does not have a sufficient interest to entitle him to challenge the decision.

The broader approach

The law in the United Kingdom follows the position in R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd (“World Development Movement Ltd"), where the applicant was a non-partisan pressure group that had an interest in ensuring that aid budgets were well used when funding overseas projects. The applicant sought judicial review of the Secretary of State’s decision to grant aid to the building of a dam in Malaysia.

The court granted representative standing despite the fact that none of the members of World Development Movement Ltd had a direct personal interest in the matter. The court stated a number of considerations that it took into account, including:

1. The need to vindicate the law;
2. The importance of the issue raised;
3. The likely absence of any responsible challenger;
4. The nature of the breach against which relief is sought; and
5. The role of the applicants in giving advice, guidance and assistance with regard to the subject matter of the dispute.

The position in Singapore

There are no Singapore cases that have granted representative standing in constitutional cases. The requirement in Tan Eng Hong that the applicant needs to show that he suffered a violation of his own constitutional rights seems to have implicitly excluded the possibility of representative standing in constitutional matters. Unlike in Singapore, the US has recognised, to a certain extent, representative standing in judicial review of constitutional law. In Eisenstadt v. Baird ("Baird"), the appellant Baird was convicted for distributing a contraceptive to a woman at the close of his lecture on contraception. Under the Massachussets law, only doctors and pharmacists were allowed to distribute contraceptives, and only to married people. Baird successfully challenged the constitutionality of this statute. The court held that Baird had standing to assert the constitutional rights of single unmarried persons who were unable to obtain contraceptives, even though he was neither an authorized distributor under the statute, nor a single unmarried person himself.

However, the Court of Appeal case of Tan Eng Hong suggests that the line of reasoning taken in Baird is unlikely to apply in Singapore. Justice V.K. Rajah opined that "Every citizen has constitutional rights, but not every citizen’s constitutional rights will be affected by an unconstitutional law in the same way". Giving a fictitious scenario, he stated that "if there is a law which provides that it is an offence for any person of a particular race to take public buses, this law would clearly violate Article 12". In this fictitious scenario, the only persons who will have standing to bring a constitutional challenge against the unconstitutional law for inconsistency with Art 12 of the Constitution will be citizens who belong to the race that has been singled out, as their Art 12 rights will have been violated. Persons of other races will not have suffered violations of their Art 12 rights and will thus have no standing to bring a constitutional challenge in this scenario. This effectively excludes the possibility of persons who have not suffered a violation of their constitutional rights from representing members in the affected class, in contrast to the case of Baird.

It is possible that the courts will apply the exception for standing articulated in the Court of Appeal administrative law decision in Jeyaretnam Kenneth Andrew v AG. The court stated that in a case where a public duty is breached but the applicant did not have a private right or public right in relation to the duty, the applicant would have no locus stand. However, if the breach of public duty 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 locus standi, at the discretion of the courts. The court stated that this was a very narrow exception which concerns only “extremely exceptional instances of very grave and serious breaches of legality”.

If the exception articulated in Jeyaretnam Kenneth Andrew v AG is applied to constitutional law cases, this could allow for representative standing where there has been a breach of a constitutional right that is of sufficient gravity.

The position of the law on representative standing in Singapore remains to be seen.

Commentary

An academic distinction has been made between representative standing and public interest cases. Peter Cane has distinguished between representative capacity and individual standing. Representative standing can be categorised into three sub-categories: associational standing, surrogate standing and public interest standing.

In the former two sub-categories, the applicant represents the individual interests of others, namely the individual interests of its members or the individual interests of some other person or group of persons prevented from bringing an action by vulnerability or other factors. In contrast, for public interest standing, the interest of the public at large in the matter involved is represented.

The term public interest standing can also refer to a wider class of cases where standing is justified in part by some public interest.

There are cases where the courts have found that an applicant has standing to represent individuals (associational standing), and cases where the applicant purports to represent the public interest (public interest standing). Under this analysis, ex parte Greenpeace may be regarded as an example of the former, and ex parte World Development Movement the latter. 

Justiciability

Introduction

A fundamental constitutional principle under the rule of law is the separation of powers. It is settled law that the courts in Singapore by virtue of Article 93 of the Constitution of Singapore “has jurisdiction to adjudicate on every legal dispute on a subject matter in respect of which Parliament has conferred jurisdiction on it, including any constitutional dispute between the State and an individual.”

While it is the general rule that all legal issues are by default justiciable, the Singapore courts have “developed an internal doctrine of self-imposed judicial restraint” with regards to certain issues. The Singapore High Court in Lee Hsien Loong v Review Publishing held in obiter dicta that “there are clearly provinces of executive decision-making that are, and should be, immune from judicial review.” An issue which is immune from judicial review is known as a “non-justiciable” issue both in Administrative law and Constitutional law.

In the case of Lee Hsien Loong v Review Publishing, the Singapore High Court identified four criteria to identify the areas that are non-justiciable.

Lee Hsien Loong, the present Prime Minister of Singapore.

Access to material

Essentially, the court held that justiciability depends on the subject matter that is in question and not the source of power. Where it is the executive that has access to the best materials available to resolve an issue, its views should be regarded as highly persuasive, if not decisive.

The courts will usually find matters of national security and defence non-justiciable due to the nature of the decision making process. Such decisions often require sensitive information relating to military intelligence and diplomatic communications. The courts do not have access to such information; to substitute its decisions for the executive’s in these circumstances would be clearly inappropriate.

Weighing of governmental policies

Judges are also deemed to be ill-equipped to deal with situations where the intricate balancing of various competing policy considerations is required. Judges possess limited training, experience and access to materials in these areas and the courts should shy away from reviewing merits of government policy.

Furthermore, in a Westminster democracy such as Singapore, the executive branch of government directs government policy via Parliament. They are ultimately accountable to voters through regular elections. If un-elected judges take it upon themselves to weigh the merits of democratically decided policies instead, it would arguably amount to a usurpation of legislative and executive powers and also going beyond the constitutional powers of the judiciary.

Embarrassment for other branch of government

The Court of Appeal is the highest court in Singapore. It performs only appellate functions, and consists of 3 Justices of Appeal and the Chief Justice of Singapore.

The courts are also to abstain from situations where a judicial pronouncement could embarrass some other branch of government or tie its hands in the conduct of affairs traditionally regarded as falling within its purview.

Strong and efficient governance is central to Singapore’s success. Furthermore, Singapore is an Asian society where great value is placed on face and dignity. Chan Sek Keong CJ , spoke extra-judicially in a speech to Singapore Management University law students explaining that the judiciary in Singapore prefers a “green-light” approach to a “red-light” one. Under the “green-light” approach, the courts “play a supporting role”, and places high levels of trust in political leaders. It is therefore important not to be too aggressive or antagonistic in judicial review, especially where a decision to review a certain case could lead to unnecessary embarrassment for government. This could lead to defensiveness in the executive where resources may be channeled to defending the integrity and legality of its decisions rather than on the day-to-day business of proper governance.

Prerogative power of the Executive and Legislature

The courts also recognises that there are areas of prerogative power that the democratically elected Executive and Legislature are entrusted to take charge of, and, in this regard, it is to the electorate, and not the Judiciary, that the Executive and Legislature are ultimately accountable.

The idea of prerogative power stems historically from English common law. The reigning monarch, and by extension, the Crown’s ministers, would preserve certain powers which are seen as the “royal prerogative”. These powers include the power to dissolve parliament and the declaration of war. Such powers are traditionally held to be beyond the purview of the judiciary.

Due to Singapore’s colonial past, Singapore inherited the English legal system, and some prerogative powers are preserved and utilised by the government, even though Singapore does not have a reigning monarch. In such areas, the courts abide by the traditional position of non-justiciability.

Justiciability in reviewing Legislation vs Executive action

In Singapore, judicial review on the unconstitutionality of legislation has rarely been brought to court. To date, most cases involve judicial review on the legality of executive action. Even in the few cases on the judicial review of legislation, such as the 2012 case of Tan Eng Hong v AG, the Singapore courts have yet to strike any such applications down on account of non-justiciability. It remains to be seen whether the court would apply a different standard of justiciability when reviewing legislation.

Non-justiciability in common law

Matters of “high policy”

Matters of “high policy” was identified in the case of Lee Hsien Loong v Review Publishing to include matters such as the conduct of foreign affairs, the making of treaties, matters pertaining to war, the deployment of armed forces and issues pertaining to national defence. Cases concerning international boundary disputes and the recognition of foreign governments are also identified to fall within this category of non-justiciability.

Matters of national security

National Service is an integral part of the Singapore defence policy.

Issues of national security are non-justiciable in Singapore law. This is evident in many of Singapore’s cases. The prime case to establish this is that of Chan Hiang Leng Colin v Minister for Information and the Arts which explicitly stated that it is settled law that issues of national security are not justiciable. The court in that case highlighted that the issue on whether there should be a ban on the publications by the Jehovah’s Witnesses was not justiciable. This was because the publications were essential for the profession, practice and propagation of beliefs of the Jehovah’s Witnesses and a central tenet of this is the refusal to do National Service. Therefore, this was akin to urging the court review, in a full hearing, the issue of Jehovah’s Witnesses’ refusal to do National Service. The Singapore Court of Appeal reiterated their stand in Chng Suan Tze v Minister for Home Affairs stating, “it is clear that where a decision is based on considerations of national security, judicial review of that decision would be precluded”.

The case of Chng Suan Tze v Minister for Home Affairs showed how Singapore courts seem to follow the UK’s approach to treating issues of national security. In the UK, the courts take the stance that issues of national security are non-justiciable because the executive alone has access to the necessary information and the judicial process is unsuitable for reaching decisions on national security.

Foreign affairs

The area of foreign affairs is another matter of “high policy”. Singapore courts generally abstain from reviewing executive decisions in this area, unless the decision was made in bad faith. In the case of CAA v Singapore Airlines which dealt with the question of the recognition of sovereign status, the Singapore Court of Appeal stated clearly that it is “not for the courts to get themselves involved in international relations”. The courts are ill-equipped to deal with such matters and should there be any ambiguity in the decision made by the executive, the proper recourse would be for the courts to seek further clarification and not to second-guess the executive or to determine the answer through a separate, independent inquiry.

In the UK, it is settled law that prerogative powers of the executive on matters of high policy such as the “making of treaties, making war, dissolving parliament, mobilising the Armed Forces” are not justiciable. This principle was endorsed in the recent UK case of R (on an application of Gentle) v Prime Minister, and referred to in Lee Hsien Loong v Review Publishing, where Sir Anthony Clarke MR stated that “the starting point is the proposition that issues relating to the conduct of international relations and military operations outside the United Kingdom are not justiciable (as) constitutionally such matters lie within the exclusive prerogative of the executive and … they are governed by international and not domestic law”.

Executive as the final arbiter

Judicial review will be excluded where the legislature has made it clear that the question is reserved to the executive to answer. An illustrative case is that of CAA v Singapore Airlines where the Singapore Parliament had by section 18 of the State Immunity Act specifically conferred on the executive the power to make a conclusive determination whether a State is recognised for the purposes of the Act. Hence the matter is wholly within the domain of the executive and it is essential that the courts do not act in a manner that is inconsistent with the approach of the executive.

Interpretation of international treaties

The Supreme Court of the United Kingdom - Singapore inherited its legal tradition from its colonial past under English rule. Therefore, much of English law remains applicable in Singapore.

Currently, there are no Singapore cases illustrating the court’s approach to the interpretation of international treaties, although the case of Lee Hsien Loong v Review Publishing does identify this area to be one of which the court will “no doubt find unjusticiable”.

Nevertheless, reference may be made to the UK case of R (on the application of Campaign for Nuclear Disarmament) v Prime Minister where the English High Court refused judicial review in the context of construing United Nations Security Council Resolution 1441 primarily on the basis that the court should not declare the meaning of an international instrument that operates purely on the plane of international law. It was held that the courts may only pronounce on an issue of international law where it is necessary to do so in order to determine rights and obligations under domestic law. Domestic courts are only responsible for the lawful exercise of public power with regard to domestic law; they are not charged with policing the UK’s conduct on the international plane, which should be left to the International Court of Justice.

Exceptions to non-justiciability at common law

In Singapore, following the case of Lee Hsien Loong v Review Publishing, the correct approach is “not to assume a highly rigid and categorical approach to deciding which cases are not judiciable”. This is consistent with the position adopted by the English Courts. Most notably, as per Laws LJ in the case of R v Environment Agency, “no matter how grave the policy issues involved, the courts will be alert to see that no use of power exceeds its proper constitutional bounds”. It was also stated that the intensity of judicial review will depend upon the context which the issue arises and upon common sense. Therefore, it is pertinent to note that not every matter which on its face appears to be non-justiciable is precluded from judicial review.

Wednesbury Unreasonableness

(Refer to main article for a more detailed explanation)

One of the exceptions to non-justiciability would be where executive actions are found to be Wednesbury unreasonable. This occurs when a public authority makes a decision that is “so absurd that no sensible person could ever dream that it lay within the powers of the authority” as first evinced in the English case of Associated Provincial Picture Houses v Wednesbury Corporation (1947) 1 KB 223. In such a case, the court is not precluded from reviewing the legality of the decision. Nonetheless, it should be noted that Singapore courts will be slow to infer a case of Wednesbury unreasonableness; the courts tend to defer to the executive where public interest is paramount.

Issues which are justiciable only upon closer scrutiny

An exception to non-justiciability is where an issue appears to be prima facie non-justiciable, but on closer scrutiny becomes clear that it is something the courts may well find justiciable. This was enunciated in the case of Lee Hsien Loong v Review publishing citing the Australian Federal Court's case of Humane Society. An instance of this exception is where a pure question of law can be isolated from what initially appears to be a non-justiciable area.

Pleas in defence, not pleas in bar

Where cases involve traditional areas of non-justiciability such as matters of national security, the courts have held mere assertions are not “pleas in bar” but are only pleas in defence. That is, such a plea would only succeed if there is evidence that the challenged decision was in fact founded on national security grounds. This principle was noted by Lord Fraser in the UK case of Council of Civil Service Unions v Minister for the Civil Service (more commonly know as the GCHQ case) and endorsed by the Singapore Court of Appeal in Chng Suan Tze v Minister for Home Affairs and others.

Bad faith

The Law Society of Singapore is a self-regulating body which oversees the legal profession in Singapore.

Another exception to matters considered as non-justiciable is that of bad faith on the part of decision-makers. It was established in the UK case of R v Environment Agency, that “judicial review remains available” as a remedy for “actual bad faith on the parts of ministers making decisions of high policy”. A similar position has been adopted in Singapore as seen in the case of Law Society of Singapore v Tan Guat Neo Phyllis. The High Court found that the discretionary power to prosecute, as conferred by the Singapore Constitution, is not absolute or unfettered. Such power is only exempted from judicial review if it was not exercised in bad faith for an extraneous purpose and is not used to contravene constitutional rights. Where these two aspects of the exercise of prosecutorial discretion are not fulfilled, Courts have an obligation to intervene and provide a constitutional remedy through the means of judicial review.

Constitutional and statutory limits to justiciability

In Singapore, the non-justiciability of certain issues has been codified in its written constitution as well as in statutory ouster clauses.

Non-justiciability under the Singapore Constitution

Under Article 149(1) of the Singapore Constitution , any law which is designed to stop or prevent actions falling under one of five listed categories is deemed to be valid, notwithstanding that it may be inconsistent with any constitutional rights. The five categories consist of actions which –

1. cause organized violence, or the substantial fear of organized violence, against persons or property;

2. excite disaffection against the President or the Government;

3. promote racial ill-will and hostility likely to cause violence;

4. procure the alteration by unlawful means of anything by law established; or

5. are prejudicial to the security of Singapore.

In the wake of the local case of Chng Suan Tze, Article 149(3) was inserted by the Singapore Parliament into the Constitution in 1989 to extend the non-justiciability of the five categories in Article 149(1) to executive actions as well.

Non-justiciability under ordinary statutes

Certain statutes also contain ouster clauses, which attempt to render executive decisions non-justiciable by expressly precluding any form of judicial review. A prominent example of this would be s8B(2) of the Internal Security Act (commonly known as the ISA) which precludes judicial review of any executive decision made under the provisions of the ISA, except on grounds of procedural impropriety.

While the UK courts in the case of Anisminic v Foreign Compensation Commission have declared that ouster clauses are not entirely effective in precluding judicial review, the Singapore courts have declined to apply this principle to the ISA ouster clause, acknowledging that executive actions under the ISA are not a justiciable matter.

The Singapore courts have also held that common law exceptions to non-justiciability such as bad faith would not apply to the ISA, as allowing the court to apply such exceptions would be contrary to the legislative scheme intended by the Singapore Parliament.

See also

• Law of Singapore
• Supreme Court of Singapore

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 H[ui-]M[eng] (1995), "The Judiciary", The Legal System of Singapore, Singapore: Butterworths Asia, pp. 41–68, ISBN 978-0-409-99789-7 (pbk.) {{citation}}: Check |isbn= value: invalid character (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).
• Tan, Kevin Y[ew] L[ee] (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 Y[ew] L[ee]; 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