LOCALISING ADMINISTRATIVE LAW IN SINGAPORE

• Date: 01 December 2017
• Author: Swati JHAVERI BA, BCL (Oxon); Assistant Professor, Faculty of Law, National University of Singapore.
• Published date: 01 December 2017

Embracing Inter-branch Equality

This article considers two main ways in which Singapore courts have localised administrative law, departing from its English law roots. First, it will look at differences in the balance struck by courts between themselves and the Executive in the review of administrative action. Traditional analyses of administrative law in common law jurisdictions tend to rationalise a particular hierarchy between courts and the Executive based on factors like the relative institutional expertise of the institutions and the relative political and democratic credentials of the two branches. This article argues for a third possible analysis for Singapore: one that is premised not on the supremacy of either branch but, instead, on the idea of co-equality. Secondly, the article will look at how this co-equality is manifested in the court's approach to reviewing the substantive aspects of administrative decision-making. Through this analysis of the localisation of Singapore administrative law, the article ultimately seeks to contribute to a richer and more robust understanding of “common law” administrative law systems.

I. Introduction

1 As with other common law jurisdictions, administrative law in Singapore has its foundations in the English common law. However, it has generally not tracked developments in English administrative law. This article will consider two main departures.

2 First, it will look at differences in the balance struck by courts between themselves and the Executive in the review of administrative action. While, in Singapore, the courts have referenced constitutional principles like the “rule of law” and “separation of powers”, in common with English courts, the operation of these principles has been

influenced significantly by the local political environment.1 In the English context, these constitutional principles are confronted with the idea of parliamentary supremacy, another fundamental precept of English constitutional law, with judges taking contrasting positions on the relationship between the various principles. On some occasions, courts have emphasised that the rule of law operates as a ceiling against any assertion that judicial review is restricted on the basis of parliamentary supremacy. However, there are also examples of cases where the courts have held that parliamentary supremacy trumps other constitutional principles to restrict judicial review.2 In Singapore, parliamentary supremacy is not a part of the formal constitutional framework.3 However, there has still been a debate over which constitutional norms take primacy in the context of judicial review.4Therefore, “the notion of a subjective or unfettered discretion [being] contrary to the rule of law”5 has competed with varying concepts of the separation of powers: the latter manifesting itself through the exercise of judicial deference,6 the identification of non-justiciable areas of review7 and the extension of a presumption of legality to executive action.8 The discussion in section II will highlight how this competition has been resolved over time by the courts in Singapore. It will demonstrate how the courts have chosen to articulate different equilibrium points between the courts and the Executive, with the most recent one being premised on the idea of the co-equality of both branches versus the supremacy of either, the latter being more characteristic of the ongoing debate in the English context.

3 Secondly, the article will look at how this idea of co-equality is apparent in recent developments in judicial review of the more substantive aspects of administrative decision-making (such as the “reasonableness” of an executive decision). It is in this context that the constitutional tussle between courts and the Executive can be the most acute. Therefore, a consideration of the court's approach to substantive review in any jurisdiction is highly indicative of the size of the role of the Judiciary in the overall accountability and governance machinery of a state. The issue is also relevant when looking at how administrative law doctrine has taken a more indigenous development route. Substantive review of executive decision-making has been the subject of the most significant advancements in the English context, largely influenced by European jurisprudence both prior to and after the enactment of the Human Rights Act. Relative to those developments, and in the absence of any equivalent regional or local political mandate to develop the law in this direction, the courts in Singapore have for a long time maintained a conservative approach to substantive review of executive decision-making,9 preferring instead to rely on the traditional grounds of review derived from Lord Diplock's now famous exposition in

Council of Civil Service Unions v Minister for the Civil Service,10 namely: illegality, irrationality and procedural impropriety. This article looks at recent extensions in the area of substantive review. In particular, it will look at the recent recognition of a localised version of the doctrine of substantive legitimate expectations,11 evidence of the use of varying standards of review within irrationality review12 and the recent embryonic use of “balancing” or proportionality-type analyses in reviewing the legality of executive action.13 The analysis will highlight how the developments here have been much more gradual and incremental than in the English context.

4 Through this analysis of the localisation of Singapore administrative law, this article ultimately seeks to contribute to a richer and more robust understanding of “common law” administrative law systems. Traditionally, analyses of administrative law in common law jurisdictions tend to rationalise a particular hierarchy between courts and the Executive depending on an evaluation of factors like the relative institutional expertise of the institutions, political legitimacy of either and/or the democratic (or otherwise) credentials of the two branches.14 This article argues for a third possible analysis: one that is premised not on the supremacy of either branch but, instead, on the idea of co-equality and balance between the two branches.

II. Evolving attitudes towards judicial review of administrative action

5 Singapore is administratively complex with the work of the State carried out by a multitude of government ministries, government corporations and statutory boards that regulate almost all aspects of life: from healthcare, education and housing to environmental planning, trade and business development and transport infrastructure.15 Given the “largeness” of the administrative state, scholars have argued that there are one of two responses open to the Judiciary in checking the executive branch through judicial review.

6 One is a “green-light” approach based on trust in the Executive and its internal mechanisms for ensuring good governance and accountability. Alternatively, the Judiciary may be “red light” in response to such a concentration of power and subject the exercise of executive power to more intense scrutiny.16 This could be especially so in a Westminster-style system where the Executive is drawn from the elected members of Parliament and the latter, therefore, potentially becomes a relatively blunter tool of independent accountability. This may be mitigated, to some extent, in a bicameral parliamentary system like the English parliamentary system.

7 This has been the prompt for a predominantly red-light approach to expansions in the grounds of judicial review in the English context.17 This could be due to the early influence of Albert Venn Dicey on English public law. Dicey viewed discretionary power, with its inherent potential for abuse, as intrinsically contrary to the rule of law and, therefore, something to be kept firmly in check.18 It could be argued that a similar “red light” approach should be adopted in Singapore. It has a unicameral and dominant party-membership-based legislature, where the latter has been constituted by a strong majority from a single political party since Singapore's independence, leading scholars to query the capacity of the Legislature to act as an effective check.19 However, in Singapore, there have been a number of

justifications offered for maintaining a green-light approach, notwithstanding Singapore's Westminster political system. The former Chief Justice, Chan Sek Keong, observed:20

Judicial review is … a function of socio-political attitudes in the particular community … In the UK, there is a strong perception that the traditional institutional remedies for correcting executive excesses, such as ministerial responsibility, parliamentary oversight committees and public inquiries, have proven ineffective, while the burgeoning welfare system has meant greater state intrusion and interference with individual fundamental liberties. It was to safeguard these rights and liberties that the courts in the UK stepped into the constitutional vacuum and developed a strong body of administrative law principles, through which citizens could take steps to challenge and put a stop to unlawful government action …

… I would like you to consider whether this is the right perspective for Singapore to adopt. There are, of course, pros and cons in such matters, depending on one's views on the social and legal values we should espouse and how society should be governed. One argument would be that … the ‘green-light’ approach is more appropriate for Singapore. This approach sees public administration not as a necessary evil but a positive attribute, and the objective of administrative law as not (primarily) to stop bad administrative practices but to encourage good ones. ‘Green-light’ views of administrative law do not see the courts as the first line of defence against administrative abuses of power: instead, control can and should come internally from Parliament and the Executive itself in...