“ALL POWER HAS LEGAL LIMITS”

• Published date: 01 December 2017
• Date: 01 December 2017
• Author: Jaclyn L NEO LLB (National University of Singapore), LLM (Yale), JSD (Yale); Assistant Professor, Faculty of Law, National University of Singapore.

The Principle of Legality as a Constitutional Principle of Judicial Review

The now familiar passage in Chng Suan Tze v Minister for Home Affairs asserting that all power has legal limits has been declared to be a principle of legality that functions as a “basic principle” in constitutional and administrative judicial review. This article provides a close examination of case jurisprudence in Singapore to determine exactly how this passage has influenced the development of this area of law. Specifically, it argues that while the principle of legality has been used to justify and expand reviewability of both statutory and constitutional executive powers, there is scope to develop the principle to further extend the scope of reviewability as well as to justify a more robust approach to judicial review in Singapore.

I. Introduction

In our view, the notion of a subjective or unfettered discretion is contrary to the rule of law. All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power.[1]

1 The Singapore Court of Appeal made this now familiar passage in the seminal 1988 case of Chng Suan Tze v Minister for Home Affairs2 (“Chng”). The case concerned the legality of a preventive detention order on national security grounds under the Internal Security Act3 (“ISA”). The court overturned established precedent to hold that the President's and ministerial discretion is justiciable and subject to an

objective standard of review.4 In doing so, the court rejected its earlier position that the standard for review is a subjective one, whereby all that is required is evidence that the detaining authority was subjectively satisfied that there were grounds for detention.5 While the specific aspect of Chng concerning the standard of review was legislatively overruled, with Parliament passing a constitutional as well as statutory amendment to “restore” the subjective test, these pronouncements of principle in Chng have endured. Indeed, in the 2011 case of Yong Vui Kong v Attorney-General6 (hereafter “Yong Vui Kong”), then Chief Justice Chan Sek Keong affirmed that the principles enunciated in Chng were fully alive. He observed that although Parliament amended the Constitution7 and the ISA to restrict the courts' supervisory jurisdiction over national security decisions made under the ISA, it “left untouched the full amplitude of the Chng Suan Tze principle”.8 This, it was posited, must mean that Parliament “implicitly endorsed” them.9

2 Whatever Parliament's intentions were, the ideas articulated in Chng have indeed been increasingly invoked by the courts in constitutional and administrative law cases in recent times. In fact, then Chan Sek Keong CJ declared in a 2010 extrajudicial speech that the “principle of legality”, which is the phrase he uses to encapsulate the ideas articulated in Chng, is a “basic principle in constitutional and administrative judicial review”.10

3 It must be made clear here that the principle of legality that Chan CJ refers to differs in form from the principle of legality that has developed in other common law jurisdictions. In the UK and Australia, for example, the principle of legality commonly refers to an interpretive rule requiring parliament to use clear words expressing its intention to overthrow fundamental principles, infringe rights or depart from the general system of law.11 As Lord Hoffman noted in

R v Secretary of State for the Home Department, ex parte Simms, “[f]undamental rights cannot be overridden by general or ambiguous words”.12 In Australia, the common law principle of legality is used primarily to protect fundamental rights and freedoms and has been said to be “constitutional” in character.13 The principle of legality has become “an independent common law principle that is central to the proper functioning of [Australia's] constitutional system of democratic government and the maintenance of the rule of law”,14 through a collection of rebuttal interpretive presumptions.15 Nonetheless, in so far as the principle of legality is an expression of a broader commitment to the rule of law, the Singapore variant could be said to share genealogical roots with its English and Australian counterparts. After all, as the former Chan CJ explains in the Singapore context, “the principle of legality is based on the rule of law”.16

4 At this stage, it is proper to observe that what has now been called the principle of legality is composed of a broad statement that “[a]ll power has legal limits”,17 but with two specific enunciations of how such legal limits could be imposed. The first is that the rule of law abjures “the notion of a subjective or unfettered discretion”,18 which is a clear reference to the exercise of discretionary powers. The second is that “the rule of law demands that the courts should be able to examine the exercise of discretionary power”,19 which locates the power of controlling the boundaries of legality in the Judiciary. These are important to understand since saying that all power has legal limits does not tell us specifically what those limits are, who determines the boundaries of those limits, and what consequences follow from transgression of those limits.

5 Exactly how this principle of legality functions as a “basic principle” in constitutional and administrative judicial review merits closer examination. In what ways has this principle advanced judicial review in Singapore? Does it merit the proclaimed status as a “basic principle” in constitutional and administrative law? Or, has it thus far been limited in its impact? These are some questions that have yet to be subject to sustained analysis.20 This article seeks to fill some of this gap.

6 Examining the cases in which the Chng passage has been invoked, the present author argues that the main contribution of the principle of legality could be understood as advancing a presumption of reviewability21 of the exercise of discretionary powers on the part of the Executive. This presumption applies to discretionary powers that are derived from statute as well as from the constitution. This could be seen as an extension of the rule of law claims beyond the principle's original remit within Chng, which was concerned only with the justiciability of a statutory power. This elevates the principle to constitutional status.

7 Beyond this, the principle of legality, however, has had limited impact on constitutional and administrative jurisprudence in Singapore. Indeed, the cases show that while the principle of legality was frequently asserted to reinforce the court's judicial review powers, including over review of legislation, the principle did not further assist the court in providing any substantive rule of law norms by which to evaluate the legality and constitutionality of power. The author argues that more could be done normatively with this principle. In this regard, the author identifies three tentative ways in which the principle could be further developed as a “basic principle” of constitutional and administrative law.

8 Section II briefly examines the case of Chng to provide the context for the passage that has now been encapsulated as a principle of legality. Section III examines how the principle of legality has been used to justify reviewability or justiciability of executive discretion. Section IV conceptualises the principle as a constitutional principle.

Section V argues for the strengthening of the principle to further expand the scope of and basis for judicial review in Singapore.

II. Chng and principle(s) of legality

9 To fully appreciate the significance of the passage articulating the principle of legality, a little background to Chng is apposite. The case was concerned with the legality of a preventive detention order issued by the Minister of Hone Affairs on national security grounds. The detainees had been accused of “being involved in a Marxist conspiracy to subvert and destabilise the country to establish a Marxist state”.22 They had applied unsuccessfully to the High Court for leave to issue writs of habeas corpus and appealed to the Court of Appeal. There was established precedent that detention orders made on national security grounds were non-justiciable and that the courts merely need to be shown that the issuing authority was subjectively satisfied that there were grounds for detention.23 The Court of Appeal, however, stunningly chose to overturn precedent24 and ruled that the subjective discretion test would “no longer be good law”.25

10 While the court supported its decision by referring to persuasive developments in other common law jurisdictions, it is its pronouncement of the famous passage that was most revealing of its normative judicial philosophy. Here, there are still echoes of parliamentary intent and ultra vires as the court also stated immediately after the famous passage that if the Executive exercised its discretion conferred under an Act of Parliament outside the “four corners within which Parliament decided it could exercise its discretion” [emphasis added],26 that exercise of discretion would be “ultra vires the Act” and “a court of law must be able to hold it to be so”.27 Nonetheless, there is a clear pivoting towards constitutional norms, rather than parliamentary intent, as the foundation for judicial review. This is further manifest in the court's observation that the objective test was more consistent with constitutional requirements, specifically constitutional rights. As the court put it, the relevant sections in the ISA are “exceptions” to

fundamental rights guaranteed under the Constitution28 and, therefore, should be “narrowly construed so as to derogate as little as possible from such fundamental rights”.29

11 The actual legal approach to reviewing preventive detention order post-Chng is subject to some discussion because while rejecting the subjective test in favour of...