Chan Ying Ling

Judicial Review in Singapore

by Chan Ying Ling

The recent case of Lim Meng Suang v AG1, where the court was called upon to determine the constitutionality of the controversial statute s 377A2 which criminalizes acts of gross indecency between two male persons, has drawn attention to the process of judicial review in Singapore. This essay attempts to paint a general picture on judicial review in Singapore and the internal restrictions placed by the courts on the scope of judicial review.

Judicial power is vested in the courts under Art 93 of the Constitution. Even though “judicial power” is not expressly defined under the Constitution, it has been described in Huddart Parker Pty Ltd v Moorehead3 as the “power which every sovereign authority must of necessity have to decide controversies between its subjects or between itself and its subjects, whether the rights relate to life, liberty or property”.

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

Under Art 4, the Constitution is the supreme law of Singapore. Due to the principle of constitutional supremacy, John Marshall CJ in Marbury v Madison4 stated that any law that is inconsistent with the written constitution as “the fundamental and paramount law of the nation” is, to the extent of the inconsistency, void. This forms the basis for the courts’ jurisdiction for judicial review. In Chan Hiang Leng Colin v PP5 [Colin Chan], the court held that it had “the power and duty to ensure that the provisions of the Constitution are observed”6 by declaring as void unconstitutional laws and administrative acts which exceed the limits of the power conferred.

In Singapore, the written constitution confers upon the Judiciary co-ordinate status with the Parliament. In Mohammad Faizal v PP [Faizal]7, the court noted that the judicial power of the courts is derived from the Constitution and is thus co-equal with the legislative power and the executive power. Due to the principle of constitutional supremacy, the courts in Singapore have the power to strike down unconstitutional laws.

Preliminary requirements have to be met before the courts are willing to conduct judicial review. Under Order 53 of the Rules of the Court, the applicant applying for leave to grant the relief claimed has to show a prima facie case of reasonable suspicion. The case must be real and not a theoretical one8; and it must not be premature9. Also, the principle of res judicata applies such that the courts cannot reopen old cases unless it was to do justice10. The applicant of a case must also have locus standi to bring the case before the court. In Singapore, the “sufficient interest” test is used for judicial review cases in order to sift out claims without merit11.

After preliminary requirements are met, the courts may also decline jurisdiction for judicial review if the issue is not one which is appropriate for the courts to answer or if it falls outside the expertise of the courts. The court in Faizal12 noted that the principle of separation of powers requires each branch of the government to act within the limits of its own powers. In Yong Vui Kong v AG13, Steven Chong J identified three factors which will affect the court’s decision to decline to conduct judicial review. First, the courts will decline to intervene where there is an absence of objective legal standards, such as where the issue is one of political or subjective preference. Second, the courts will decline to intervene where it lacks specialist knowledge. Third, the courts will decline to intervene where the issue is polycentric and involves multiple concerns and perspectives.

In Yong Vui Kong v AG14 [Yong 2010], the court refused to decide on whether the differentiating measures under the MDA are reasonable because that question goes beyond the jurisdiction of the courts and is best decided by the legislature who has the popular mandate of the people. In Chng, the courts affirmed and applied the House of Lords decision of GCHQ15 that courts should step in and exercise judicial review only where there is illegality, irrationality or procedural impropriety in the exercise of administrative authority. Also, in Lee Hsien Loong v Review Publishing Co Ltd16, Menon JC (as he then was) held that there were “clearly provinces of executive decision-making that are, and should be immune from judicial review”. Menon JC further held that a calibrated approach should be taken where the intensity of judicial review is dependent on the facts of the case and the subject matter in question. This approach is based on the doctrine of separation of powers because issues relating to policy are best addressed by the executive rather than the unelected judiciary. In this sense, there is a balance that has to be achieved between judicial review and the principle of separation of powers because there are certain issues which should be left to the executive branch of the government who has the mandate of the people.

It is submitted that the relationship between the Judiciary and the Executive should not be adversarial in nature, but should focus primarily on encouraging public administration which conforms to the rule of law. This is known as the “green-light” doctrine. In Judicial Review, Chan CJ noted that the “green-light” doctrine is likely to be preferred because it allows the seeking of “good government through the political process and public avenues rather than redress bad government through the courts”17.

In conclusion, 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.

[1] [2013] SGHC 73

[2] Penal Code (Cap 224, 2008 Rev Ed)

[3] Huddart Parker Pty Ltd v Moorehead (1908-1909) 9 CLR 330

[4] Marbury v Madison 5 US (1 Cranch) 137 (1803)

[5] Chan Hiang Leng Colin v PP [1994] 3 SLR(R) 209

[6] Supra at [9]

[7] Mohammad Faizal v PP [2012] 4 SLR 0947 at [16]

[8] The Russian Commercial & Industrial Bank v British Bank for Foreign Trade [1921] 2 AC 438

[9] Wong Keng Leoong Rayney v Law Society of Singapore [2006] 4 SLR 934

[10] Management Corporation Strata Title Plan No 301 v Lee Tat Development Pte Ltd [2011] 1 SLR 998

[11] ACC v CIT [2010] 1 SLR 273

[12] Ibid at [16]

[13] Yong Vui Kong v AG [2011] 1 SLR 1

[14] Yong Vui Kong v AG [2010] SGCA 20

[15] Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374

[16] Lee Hsien Loong v Review Publishing Co Ltd [2007] 2 SLR(R) 453

[17] Ibid at [29]