CURIAL DEFERENCE IN SINGAPORE PUBLIC LAW

• Citation: (2017) 29 SAcLJ 800
• Author: Eugene K B TAN LLB (Hons) (National University of Singapore), MSc (Comparative Politics) (London School of Economics & Political Science), JSM (Stanford); Advocate & Solicitor (Singapore); Associate Professor of Law, School of Law, Singapore Management University. Discretion, like the hole in a doughnut, does not exist except as an area left open by a surrounding belt of restriction … It always makes sense to ask, ‘Discretion under which standards?’ or ‘Discretion as to which authority?’[1]
• Published date: 01 December 2017
• Date: 01 December 2017

Autochthonous Evolution to Buttress Good Governance and the Rule of Law

Central to the separation of powers and the rule of law, judicial review empowers the courts to examine the exercise of discretionary power. While there is no general doctrine of deference, judicial review in Singapore emphasises the green-light approach in facilitating good governance, and is sensitive to the political, socio-cultural and economic context. However, the jurisprudence also indicates a nuanced and robust approach to better regulate the decision-makers' latitude. A categorical approach towards justiciability is eschewed, and judicial scrutiny adopts varying intensities of review, taking into account the rights of the individual vis-à-vis the fair and just protection of governmental autonomy.

I. Introduction

1 In judicial review, courts encounter and often recognise their own limits – whether stemming from the concerns of institutional competence, the delegation of powers and the lack of a democratic mandate. As such, courts endeavour to accord the appropriate level of deference to the findings, value judgments and decisions of the decision-makers and rule-makers – be it the Legislature or the Executive. In administrative law, a court has to assess its institutional competence to deal with a particular issue, and show restraint where its competence is limited and afford the political branches the requisite

“margin of appreciation” for their administrative actions. In constitutional law, although the focus is on ensuring that constitutional rights are given effect to, judicial deference is demonstrated in the strong presumption of constitutionality accorded to legislation enacted by the Legislature.

2 Unsurprisingly, curial deference is a crucial aspect of the separation of powers, which itself is fundamental to the rule of law. Deference embraces “a range of judicial techniques which have the effect of increasing decision-makers' latitude”.2 These include concepts like justiciability and intensity of review. But deference is, of course, laden with tension given the competing, if not conflicting, considerations. They include the imperative to protect the rights of an individual, especially the fundamental liberties guaranteed under the Singapore Constitution,3 and to afford the Government sufficient latitude to exercise its earned democratic mandate to further governmental objectives without unnecessary interference from the courts. Lord Hoffman said it well when he noted that deference with “its overtones of servility, or perhaps gracious concession, are appropriate to describe what is happening”.4

3 Whether it is in the realm of constitutional law or administrative law, the bottom line in judicial review is that “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”.5 The Legislature and Executive do not possess the unfettered power or discretion to legislate and to make policy and exercise executive powers in any manner they like. Governmental powers cannot run afoul of the constitution, as the supreme law of the land, and legislation.

4 Hence, it is not a question whether there should be curial deference. Instead, the more prominent questions revolve around when and how much the courts ought to defer to primary decision-makers. Too much deference by the Judiciary to the political branches could result in individual rights being ridden roughshod over. Too little

deference, on the other hand, could result in the courts overreaching, potentially generating constitutional chaos.6

5 In either case, notwithstanding the Judiciary's lack of accountability to the popular will, the Judiciary could be abdicating its fundamental constitutional duty. Ultimately, the thoughtful recognition and principled application of deference do not undermine the Judiciary's legitimacy and authority. Instead, such institutional humility is a cornerstone of rights adjudication and enhances the Judiciary's role as a counter-majoritarian check in a constitutional system of government. This sensitivity is central to justiciability and the intensity of review as manifestations of responsible curial deference.

6 This article examines the evolution of judicial deference in Singapore. For much of Singapore's independent history, Singapore courts did not substantively engage with the issue of deference until about a decade ago. While there is yet to be a general doctrine of deference in Singapore, the contours of the courts' broad approach to deference can be discerned, which tends towards erring on the side of prudence and caution in the fair and just protection of governmental autonomy. Does this mean that rights protection is compromised or even sacrificed at the altar of governmental autonomy? This need not be the inevitable outcome where the separation of powers is assiduously observed and the purpose and objective of judicial review is alive to the political, socio-cultural, and economic context and realities. How judicial review is practised should also reflect the socio-political culture, norms and values of the community.7 As such, not to consider the social-political setting of Singapore and any changes to it might result in an inadequate understanding of the Judiciary's approach towards judicial review.

7 This article, which focuses on judicial review in administrative law, proceeds as follows. In part II, the contours of curial deference in Singapore are outlined. Curial deference is largely similar in tenor to other common law jurisdictions although recent jurisprudence point to a nascent autochthonous development. Where judicial review in Singapore differs is its emphasis on the green-light approach in

facilitating good governance. Parts III and IV respectively examine justiciability and the intensity of review, the related “engines” of judicial review that involve calibrating the appropriate level of curial deference. The jurisprudence is evolving towards a nuanced and robust approach in which a categorical approach towards justiciability is eschewed. Instead, the focus of the courts is on the true nature of the question raised for adjudication. Similarly, judicial scrutiny of governmental action adopts varying intensities of review, rather than a uniform intensity, more consciously taking into account the rights of the individual vis-à-vis the interests of the Government. The issue of the standard of review reflecting the appropriate level of deference to interpretations of the law by primary decision-makers is considered in part V. Any movement towards granting the Executive more interpretive autonomy will have to balance the inherent polycentric nature of such matters, and the courts' institutional competence and democratic legitimacy against the role of the courts in Singapore's system of constitutional government, especially given the sharp edge that judicial review potentially is. Part VI concludes.

II. Overview of deference

8 Curial deference and judicial independence are intimately connected. The independence of the courts empowers them to determine when and how to defer to the competence of the other branches of government. In a 2010 article, Chan Sek Keong CJ (as his Honour then was) described the role of the Judiciary in a democracy and the centrality of judicial independence in its execution of its constitutional duties as such:8

In a democracy with a form of representative government (based on the doctrine of separation of powers), the Judiciary is one of three arms of government, co-equal in status, and vested with the power, among others, to check the Legislature and the Executive in their exercise of powers vested in them by law and the constitution of the State … The Judiciary acts as an impartial referee to decide what conduct is permissible or not permissible under applicable rules of conduct, whether the rules have been infringed or not infringed, and to provide the remedies for such infringements. To fulfill these functions, the Judiciary has to be independent of the other two arms of government. A Judiciary that is not independent would not be able to fulfill such a role, and would provide a weak foundation for democracy and its associated attribute (i.e., the rule of law) to flourish. Conversely, the Judiciary requires the existence of the rule of law for continuous independence. There cannot be the rule of law without an

independent Judiciary, and vice versa, but with both, there will be security, law and order, and stability, which are requisites for progress and the protection of political and civil rights.

As Lord Hoffman observed, “[i]ndependence makes the court more suited to deciding some kinds of questions and being elected makes the legislature more suited to deciding others”.9 How decision-making powers are allocated is often spelt out in a constitution, legislation, and/or based on conventions, and subjected to principles of law.

9 The Singapore courts have consistently acknowledged the doctrine of curial deference, even if in giving effect to it bore different emphasis in different periods since independence. The Court of Appeal recently had the opportunity to consider the doctrine in Tan Seet Eng v Attorney-General10 (“Tan Seet Eng”), where the apex court captured very well the Judiciary's attitude and approach towards curial deference. Put broadly, the court stated that deference was a flexible doctrine, which was not antithetical to the court reviewing executive action. This entails the court assessing its institutional competence to deal with a particular issue, and to show restraint where its competence is limited.

10 Like in other common law jurisdictions, the basis of the doctrine in Singapore can be justified on grounds of institutional competence and democratic intent. Institutional competence revolves around...