125-511: Chng Suan Tze v. Minister for Home Affairs is a seminal case in administrative law decided by the Court of Appeal of Singapore in 1988. The Court decided the appeal in the appellants' favour on a technical ground, but considered obiter dicta the reviewability of government power in preventive detention cases under the Internal Security Act ("ISA"). The case approved the application by
250-561: A Marxist conspiracy to subvert and destabilise the country. Detention orders were made against the appellants under section 8(1)(a) of the Internal Security Act by the Minister for Home Affairs and Law , S. Jayakumar , directing that they be detained for one year. The provision empowers the Minister to make an order directing that a person be detained if the President is satisfied that detention
375-426: A condition subsequent brings a duty to an end whereas a condition precedent initiates a duty. In computing, a while loop is an instruction to check a condition precedent, then execute an action only if that check evaluates to 'true' ; after which execution, control then returns to the beginning of the loop and the cycle of check and conditional execution begins again. By contrast, a do while loop first executes
500-566: A mistake of law was revealed on a perusal of the record of the proceedings. According to Re Application by Yee Yut Ee (1978), this ground of review is still applicable in Singapore today. In the case, the applicant, who was a company director, challenged an order of the Industrial Arbitration Court ("IAC") which had made him personally liable for paying the retrenchment benefits of the company's employees. The High Court quashed
625-593: A High Court decision. If Lee Mau Seng is wrong, the Court of Appeal can still overrule it now. Administrative law in Singapore Administrative law in Singapore is a branch of public law that is concerned with the control of governmental powers as exercised through its various administrative agencies . Administrative law requires administrators – ministers, civil servants and public authorities – to act fairly, reasonably and in accordance with
750-502: A branch of or associated in some way with JC Penney. However, the Court held that the Registrar was wrong to have done so as it was an inference which had no probative value since it was not founded on any substratum of facts. In R. (SB) v. Headteacher and Governors of Denbigh High School (2006), the House of Lords expressed the view that whether an individual possesses certain human rights
875-588: A breach of natural justice . This distinction applied both to the exercise of power by public authorities and to courts and tribunals. However, in English law, the decision in Anisminic Ltd. v. Foreign Compensation Commission (1968) is seen as having done away with the distinction, even though that was not the intention of the House of Lords. In R. v. Lord President of the Privy Council, ex parte Page (1992), it
1000-471: A breach of natural justice, the Court's remarks were, strictly speaking, obiter dicta . Also, the judge in Stansfield was speaking about the scope of judicial review where the statute in question contained an ouster clause ; it is possible that different considerations apply in that situation. The rest of this article assumes that, at least where ouster clauses are not involved, Singapore law and UK law are
1125-445: A case is in the "precedent fact" category depends on the "nature and process of decision" conferred on the public authority by the legislation. If there is "room for appreciation, even for discretion" because, for example, the authority is required to consider numerous statutory rules and non-statutory guidelines, as well as evidence of doubtful accuracy or veracity, then the decision in question will be regarded as unsuitable for review by
1250-508: A commitment to "an anaemic version of the Rule of Law". Alternative views have been expressed that the amendments were not seeking to replace the common law of judicial review. Instead, they borrowed from the common law by turning the clock back, and merely clarified the limits of judicial power in relation to the ISA. It has also been noted that the amendments do not compel the application of Lee Mau Seng ,
1375-791: A conclusive list. Lord Diplock stated: "That is not to say that further development on a case by case basis may not in course of time add further grounds", and alluded to the possibility that in future the principle of proportionality , as recognised in the administrative law of several European Economic Community countries, might be adopted. The Singapore Court of Appeal affirmed the GCHQ case in Chng Suan Tze v. Minister for Home Affairs (1988), and Singapore courts have largely been consistent in following this framework. The grounds of judicial review that may be regarded as forms of illegality can be divided into two categories: those that, if proved, mean that
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#17328558606821500-424: A condition precedent is an event which must occur, unless its non-occurrence is excused, before performance under a contract becomes due, i.e., before any contractual duty exists. In estate and trust law, it is a provision in a will or trust that prevents the vesting of a gift or bequest until something occurs or fails to occur, e.g. the attainment of a certain age or the predecease of another person. For comparison,
1625-454: A court of justice for the lawfulness of what they do, and of that the court is the only judge ... The Court of Appeal held further that as the discretion conferred by section 8 of the ISA involved national security, the issue of whether detention was necessary should be left solely to executive discretion. However, the Court referred to two United Kingdom decisions which stood for the principle that courts are not precluded from determining whether
1750-529: A court would not question the executive's decision as to what national security required, the court could examine whether the executive's decision was indeed based on national security considerations. Under the subjective test applied in Karam Singh and Lee Mau Seng , the exercise of discretion by the President and the Minister under sections 8 and 10 of the ISA is not open to review. The court cannot enquire about
1875-472: A decision is in fact based on grounds of national security. Therefore, the court could still determine whether the matters relied on by the executive in the exercise of discretion were indeed within the scope of section 8. The Court of Appeal held that the scope of review of the discretion conferred by sections 8 and 10 of the ISA is limited to the traditional administrative law grounds of illegality , irrationality and procedural impropriety as established in
2000-468: A decision. According to the Court of Appeal, the burden of proof of justifying the lawfulness of the appellants' detention was, in the first instance, on the detaining authority. This burden of proof could be discharged by evidence that the President, acting in accordance with advice of the Cabinet or an authorised minister, was satisfied that the detention was necessary for national security purposes, and by
2125-582: A desire to minimise the encroachment of the state on the rights of individuals. This envisions the courts being locked in an adversarial or combative relationship with the Executive and functioning as a check on administrative power. Where a green-light perspective is concerned, the focus is not so much on actively resisting administrative bodies as a form of negative control (as in the red-light perspective), but instead raising areas where public bodies may improve their various administrative procedures. This approach
2250-455: A detainee was likely to act or to continue acting in a manner prejudicial to national security, and section 10 had entrusted to the Minister the decision whether on available evidence a revocation order was necessary in the public interest. In any case, it could not have been Parliament's intent to leave the issue of whether a detainee was likely to act or continue acting in a manner prejudicial to Singapore's security to be objectively determined as
2375-497: A fact by a court of law. The Court said: "It hardly needs any emphasis that the judicial process is unsuitable for reaching decisions on national security." The Court also rejected the proposition that the principle of proportionality be recognised as a separate ground for judicial review. Rather, it should be subsumed under irrationality, in the sense that if an executive decision is disproportionate it can be said to be irrational in that no reasonable authority could have come to such
2500-406: A jurisdictional fact or precedent fact is committed when a decision-maker makes a decision in the absence of a fact that must exist objectively before the decision-maker is empowered by the legislation to decide. Here, the courts are not concerned with the evaluation of facts, but whether the facts exist for the decision maker to exercise his power. White & Collins v. Minister of Health (1939)
2625-416: A particular discretionary power is subject to any jurisdictional or precedent fact depends on the construction of the legislation which creates that power. A discretionary power may be required to be exercised based on objective facts but Parliament may decide to entrust all relevant decisions of these facts as well as the application to the facts of the relevant rules and any necessary exercise of discretion to
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#17328558606822750-451: A person believed to be a risk to national security, and accorded to the Minister under section 10 to suspend a detention order, did not fall within the "precedent fact" category. The relevant decisions had been plainly and unequivocally been entrusted by the Act to the President and the Minister, and in any case the Court did not "think it could have been intended by Parliament that whether or not on
2875-521: A person was dependent on the Minister's objective, and not subjective, satisfaction that the person was associated with criminal activities. The Court of Appeal's decision and the amendments to the Constitution and the ISA which followed have sparked much academic discourse. The following issues have been raised by commentators. The reliance on Privy Council and Commonwealth case law by the Court has been noted by commentators as "an important precedent for
3000-447: A power by a public authority infringes a person's liberty, the court will generally regard the matter as falling within the "precedent fact" category even though the court might encounter difficulties in determining whether the authority has committed an error concerning such a fact. "If Parliament intends to exclude effective judicial review of the exercise of a power in restraint of liberty, it must make its meaning crystal clear." This
3125-458: A reference to the 1989 amendments to the ISA. In addition, nothing in Article 93 – which provides that "judicial power of Singapore" is "vested in a Supreme Court and in such subordinate courts as may be provided by any written law for the time being in force" – invalidated such provisions. Article 149(1) itself was also amended to state that inconsistency with various fundamental liberties guaranteed by
3250-408: A robust conception of the rule of law that promoted government accountability". The judgment has also been praised for its "high valuation of human rights as against the government". In purporting to reverse the Court's decision, the 1989 amendments have been criticised for being contrary to the rule of law. Thus, it has been commented that by amending Article 149 to include a "notwithstanding" clause,
3375-489: A statute oust the power of the High Court to review decisions of an inferior tribunal by certiorari, they must be construed strictly ... they will not have the effect of ousting that power if the inferior tribunal has acted without jurisdiction or "if it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity": per Lord Reid at p. 171 [of Anisminic ]. But if
3500-428: A statute, the "reasonably incidental" rule comes into play when interpreting its meaning. The courts often do not take a strict reading of the statute, but instead interpret its scope to permit the authority to carry out tasks reasonably incidental to the tasks expressly authorised by the statute. A decision-maker acts in an ultra vires manner when it did not have the power that it purported to have, and therefore there
3625-581: A subjective test until it was overruled by Chng Suan Tze . Chng Suan Tze was followed by amendments by Parliament to the Constitution and the ISA in 1989 which purported to return the applicable law regarding judicial review of government discretion under the ISA to that in Lee Mau Seng . The legality of these changes was challenged in Teo Soh Lung v. Minister for Home Affairs (1990). In that decision,
3750-550: A subjective test was applied, that would allow for arbitrary detention which would result in inconsistency with Article 12(1). Fourthly, support for the applicability of the objective test was found in Teh Cheng Poh v. Public Prosecutor (1978), a Privy Council decision on appeal from Malaysia, in which it was held that "as with all discretions conferred upon the executive by Act of Parliament, [the Malaysian ISA ] does not exclude
3875-435: A supporting role by articulating clear rules and principles by which the Singapore government may abide and conform to the rule of law . In general, judicial review of administrative action is limited to cases involving errors of law and not errors of fact. The courts are primarily concerned with the legality of decisions, and not with their merits. The first reason for this is based on the doctrine of separation of powers ,
Chng Suan Tze v Minister for Home Affairs - Misplaced Pages Continue
4000-432: A universalist approach to constitutional interpretation". However, Parliament disapproved of the Court's use of foreign case law as a guide in ISA cases because the "conditions [in those jurisdictions] are totally different from ours". This was relied on as a justification for the amendments which returned the law to that enunciated in Lee Mau Seng . Professor Thio Li-ann notes that this represented "an attempt to 'freeze'
4125-458: Is a leading English authority on errors as to precedent facts. In that case, the statutory provision in question was section 75 of the Housing Act 1936, which stated that powers of compulsory acquisition were not to be exercised by a local authority over land forming "part of any park, garden, or pleasure ground ...". Hence, an order for acquisition could be made only if it was established that
4250-504: Is composed of men of integrity, honesty and incorruptibility". However, this differed from the position he had taken 22 years earlier when he had recognised the possibility of an authoritarian, arbitrary government coming to power, and the need for a written constitution which would protect citizens against its oppressive measures. The subsequent affirmation of the constitutionality of the amendments in Teo Soh Lung has also been criticised as
4375-450: Is derived from the utilitarian tradition , and the priority in achieving the greatest good for the greatest number is to encourage the contribution of the state through means of egalitarian and ameliorative social reform so as to deliver communitarian goals. Thus, the red-light perspective is more conservative and control-oriented, while the green-light perspective is more liberal or socialist in orientation and facilitative in nature. Given
4500-475: Is likewise the law in Singapore. In Chng Suan Tze , the Court of Appeal held that: ... the function of the court in judicial review depends on whether a jurisdictional or precedent fact is involved. ... [W]here ... a jurisdictional fact issue arises the scope of review extends to deciding whether the evidence justifies the decision. It is also clear from the judgments in Khawaja ... that whether
4625-517: Is necessary to prevent the person from endangering, among other things, the security or public order of Singapore. Subsequently, the detention orders were suspended under section 10 of the ISA. However, following the release of a press statement by the appellants in which they denied the Government 's accusation that they were Marxist conspirators, the suspension directions were revoked and they were re-arrested. The revocation order stated that "in view of
4750-402: Is not a relevant consideration during a public authority's decision-making process. The quality of the decision-making process is not as significant as the practical outcome of the process and whether it infringes the rights of the individual. Condition precedent A condition precedent is an event or state of affairs that is required before something else will occur. In contract law ,
4875-401: Is not, in my view, a sufficient answer to say that judicial review of the actions of officers or departments of central government is unnecessary because they are accountable to Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to
5000-443: Is relevant to its decision, it is entitled to go on to accord little or no weight to that consideration. The question of whether something is a material consideration is a question of law the court is entitled to decide, while the question of the weight it should be given is a question of judgment which is entirely a matter for the decision-maker. The Singapore High Court has quashed a decision when it found, among other things, that
5125-556: The Housing and Development Board (HDB), which was the landlord of a flat occupied by the plaintiff, purported to compulsorily acquire the flat on the ground that the plaintiff had breached section 48A of the Housing and Development Act. The provision entitled the HDB to seize a flat if one of its authorised occupiers had acquired an interest in any other real property , and the HDB alleged that one of
Chng Suan Tze v Minister for Home Affairs - Misplaced Pages Continue
5250-452: The Singapore government 's focus on efficiency, the country has been said to emphasise a largely green-light approach towards administrative law. Public administration is not seen as a necessary evil but a positive attribute, and the objective of administrative law is not primarily to stop bad administrative practices but to encourage good ones. In this approach, recourse to the judiciary is not
5375-500: The rule against bias ( nemo iudex in causa sua – "no man a judge in his own cause"), and the requirement of a fair hearing ( audi alteram partem – "hear the other side"). Administrative law in Singapore is a branch of public law that is concerned with the control of governmental powers as exercised through its various administrative agencies . It enjoins administrators – ministers, civil servants or public authorities – to act fairly, reasonably and in accordance with
5500-457: The Board to reside therein". However, the plaintiff had not applied to buy the flat as he had, in fact, been invited by the HDB to buy it. Neither had the Board given any written authorisation for the plaintiff's son to reside in the flat. Thus, the Court granted the plaintiff an order that the HDB's action in acquiring the flat was illegal, and that the flat should be revested in him. An error as to
5625-494: The Business Registration Act, which stated that the Registrar was entitled to cancel the registration of a business name that "so nearly resembles the name of any corporation or the name under which another person carries on business as to be calculated to mislead" if the business owner failed to change the name within six weeks from being requested to do so. The Court noted that the Registrar had placed much reliance on
5750-470: The Constitution did not affect the validity of a law designed to stop or prevent action threatening national security, or "any amendment to that law or any provision in any law enacted under the provision of clause (3) [that is, Article 149(3)]". The list of fundamental liberties referred to in Article 149(1) was extended to include Article 11 , which prohibits retrospective criminal laws and repeated criminal trials, and Article 12, which protects equality before
5875-439: The Court did not pursue the point since the applicant had not argued the case on this basis. Traditionally, a distinction was drawn between jurisdictional errors of law and non-jurisdictional errors of law. A jurisdictional error of law was committed when a public authority made a decision or took some action even though it lacked jurisdiction to do so, for example, if the process was tainted by simple ultra vires . In this event,
6000-647: The Court held that Karam Singh and other cases following it were no longer good law in so far as they applied Liversidge v. Anderson (1941) and Greene v. Secretary of State for Home Affairs (1941), which were World War II cases from the United Kingdom. The House of Lords and the Privy Council had since recognised that the majority judgments in Liversidge and Greene had been wrong, and preferred Lord Atkin's dissenting judgment in Liversidge which advocated
6125-561: The Court of Appeal affirmed that the legislative amendments to the Act were plain and unambiguous, and thus validly established that the subjective test of judicial review now applied to internal security matters. Between May and June 1987, the appellants Chng Suan Tze, Kevin Desmond de Souza, Teo Soh Lung and Wong Souk Yee were arrested by the Internal Security Department (ISD) during Operation Spectrum for alleged involvement in
6250-514: The GCHQ case. Re Fong Thin Choo (1991), involved regulation 12(6) of the Customs Regulations 1979, which stated that the owner of goods or his agent could be required by a customs officer to produce evidence that the goods had been exported or re-exported, and if the goods were not accounted for to the customs officer's satisfaction or were found to have been illegally re-landed in Singapore,
6375-492: The Government had in fact exempted anti-subversion laws enacted under Part XII of the Constitution from the operation of various constitutional provisions. Furthermore, by deeming that such laws were not outside legislative power, Parliament and not the Constitution is supreme where the making of such "special powers" laws is concerned. Also, this gives the executive "a draconian power without any substantial checks". In response to
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#17328558606826500-426: The High Court could judicially review the matter. On the other hand, a non-jurisdictional error of law occurred when an authority was properly empowered to make a decision or take action, but it was alleged that the authority had exercised its discretion in breach of some administrative law principle. In such cases, the Court was not allowed to intervene by exercising judicial review, save in certain circumstances such as
6625-526: The Home Department (2004), the English Court of Appeal went on to hold that the courts can intervene where such a mistake of fact causes unfairness to an individual. The relevant conditions are these: First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been "established", in
6750-590: The House of Lords decision Council of Civil Service Unions v. Minister for the Civil Service (1984), also known as the GCHQ case. The Court noted that the scope of judicial review depends on whether a jurisdictional or precedent fact is involved. Where no jurisdictional fact is involved, the scope of review is limited to the GCHQ grounds. Where a jurisdictional fact issue arises, the scope of review extends to deciding whether
6875-453: The House of Lords decision Secretary of State for Education and Science v. Tameside Metropolitan Borough Council (1976). Tameside held that courts have power to inquire into whether facts relevant to decisions exist, and they have to be satisfied that there were sufficient factual bases for decisions to have been made. The High Court stated that the test of validity is whether the decision-maker "could reasonably have come to his decision on
7000-419: The ISA amendments taking effect from 30 January 1989. The constitution amendment bill inserted a new Article 149(3) into the Constitution which provided that any question as to the validity of any exercise of executive discretion with respect to any law referred in Article 149 (which included ISA) was to be "determined in accordance with the provisions of any law as may be enacted by Parliament for this purpose",
7125-406: The ISA were not arbitrary because they permitted detentions only for specific purposes which bore a reasonable relation to the object of the law, if a court could not review the exercise of the discretion, "that discretion would be in actual fact as arbitrary as if the provisions themselves do not restrict the discretion to any purpose and to suggest otherwise would in our view be naive". Therefore, if
7250-498: The ISA. In May and June 1988, the appellants unsuccessfully applied to the High Court for leave to apply for writs of habeas corpus . The appellants then appealed to the Court of Appeal . The lead counsels were Geoffrey Robertson Q.C. for Chng, de Souza and Wong; Anthony Lester Q.C. for Teo; and Sivakant Tiwari for the respondents. The following issues were raised in the appeals: The ratio decidendi , or legal point in
7375-484: The President had been so satisfied before the detention order was made by pointing to the fact that the recitals in the detention orders stated that the President "is satisfied", and by filing an affidavit by the Permanent Secretary to the Minister for Home Affairs which asserted that the "government" was satisfied that the appellants were a danger to national security. However, the Court of Appeal found that this
7500-404: The President or the Minister by any provision of this Act". The section was presumably intended to cover all possible court applications that might be brought against executive directions and orders made under the ISA. Section 8B(1) returned the law governing judicial review to that "applicable and declared in Singapore on the 13th day of July 1971", the day Lee Mau Seng was decided. In addition,
7625-523: The President's satisfaction. The Court held that the exercises of discretion by the President and the Minister under sections 8 and 10 of the ISA are reviewable by the courts because the subjective test that had been adopted in the 1969 Malaysian case Karam Singh v. Menteri Hal Ehwal Dalam Negeri (Minister of Home Affairs), Malaysia , which had been adopted locally in 1971 in Lee Mau Seng v. Minister for Home Affairs , could no longer be supported and should be replaced by an objective test. Furthermore, although
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#17328558606827750-600: The Privy Council from Singapore were abolished in 1994. Finally, section 8D provided for the retrospective application of the amendments to the ISA to any proceedings for judicial review of any decision made or act done under the Act made before the 1989 amendments. The legality of the amendments to the Constitution and ISA was unsuccessfully challenged by Teo in Teo Soh Lung v. Minister for Home Affairs (1989–1990) and by another detainee, Vincent Cheng, in Cheng Vincent v. Minister for Home Affairs (1990). The principle that
7875-410: The Privy Council relating to "any decision made or act done under" the ISA in respect of "any question of interpretation of the provisions of Part XII of the Constitution or any law made thereunder", which included Article 149. This prevented any appeals to the Privy Council that questioned the constitutionality of the amendments to the Constitution and the ISA. Section 8C was repealed after all appeals to
8000-402: The Registrar had accorded to J.C. Penney more rights than it was entitled to under the law relating to trademark infringement and the tort of passing off . The High Court also held that the Registrar, in reaching her decision, had relied on an allegation by J.C. Penney's lawyers that the applicant had been capitalising on JC Penney's reputation and deceiving the public that her business was
8125-594: The Singapore courts had no choice but to apply United Kingdom and other Commonwealth precedents because if they ignored them, the Privy Council would probably overrule the Court of Appeal. However, it has been noted that contrary to this suggestion, the Court of Appeal in Chng Suan Tze came to its decision after "a well-reasoned, careful examination of Commonwealth precedents". One of the Parliament's justifications for restricting judicial review in response to Chng Suan Tze
8250-426: The appellants were likely to act or to continue acting in a manner prejudicial to Singapore's security could be objectively established. However, the Court concluded that the discretion conferred by the ISA on the President and the Minister for Home Affairs by those provisions, properly construed, did not involve a jurisdictional fact. Section 8(1) had expressly entrusted to the President the decision as to whether or not
8375-421: The case which determined the judgment, was a narrow one. The appeals were allowed on the ground that the Minister had not discharged the burden of proving the validity of the detention orders. Under section 8(1) of the ISA, the President's satisfaction that a person poses a national security risk is a condition precedent to the Minister's power to make a detention order. The Minister attempted to demonstrate that
8500-513: The clause did not prevent the High Court from intervening when the IAC had committed an error of law which had caused it to act without jurisdiction. A court has the power to review a decision by a public authority if it was unsupported by evidence, or if the evidence was not reasonably capable of supporting the decision. This principle was accepted by the High Court in Fong Thin Choo , which approved
8625-580: The common law, whose very nature is to evolve incrementally". Furthermore, adopting the position of the majority in Liversidge v. Anderson , meant applying a test that had been formulated in World War II Britain in modern peace-time Singapore. During the Second Reading of the Constitution of the Republic of Singapore (Amendment) Bill, the Minister for Home Affairs and Law S. Jayakumar said that
8750-523: The correct test in judicial review proceedings is an objective one continues to apply in cases not involving the Internal Security Act. In Kamal Jit Singh v. Minister for Home Affairs (1992), the Court of Appeal remarked that, following Chng Suan Tze , the power of the Minister for Home Affairs under section 30(a) of the Criminal Law (Temporary Provisions) Act to order the preventive detention of
8875-406: The court of an objective test in the review of government discretion under the ISA, stating that all power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power. This was a landmark shift from the position in the 1971 High Court decision Lee Mau Seng v. Minister of Home Affairs , which had been an authority for the application of
9000-506: The court. In such cases, the court is limited to assessing whether there was evidence on which the authority, acting reasonably, could have reached a decision. Subsequently, the House of Lords clarified the Zamir principle in Khera v. Secretary of State for the Home Department; Khawaja v. Secretary of State for the Home Department (" Khawaja ", 1983). It expressed the view that where the exercise of
9125-458: The courts are in no position to decide on a fact when the power to do so has been assigned to another body. This was articulated in Puhlhofer v. Hillingdon London Borough Council (1986), where Lord Brightman stated that "it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that
9250-439: The decision maker, in which case the scope of review would be limited to Wednesbury principles . So long as Parliament makes its intention clear, the scope of review would be so limited, even where the liberty of the subject is concerned. On the facts, the Court was of the view that the discretion accorded to the President and the Minister for Home Affairs under section 8 of the Internal Security Act to detain without trial
9375-534: The decision-maker had not taken into account relevant considerations. In Tan Gek Neo Jessie v. Minister for Finance (1991), the applicant had registered a clothing business called "JC Penney Collections". Three years later, she was ordered by the Registrar of Businesses to alter her business name to one that did not mention "JC Penney" on the ground that the name was that of an American company, J.C. Penney Company Inc. , which had registered two "Penneys" trademarks in Singapore. The Registrar relied on section 11 of
9500-427: The decision-maker may have regard if in his judgment and discretion he thinks it right to do so. As regards the first type, which may be termed mandatory relevant considerations, it has been held that courts may intervene in cases where there are matters "so obviously material to a decision on a particular project that anything short of direct consideration of them by the ministers ... would not be in accordance with
9625-446: The detainees' liberty, the court could not imply a power of arrest and detention into section 10 when Parliament had not provided for it. The Court of Appeal took the view that once a suspension direction under section 10 is revoked, the original detention order becomes operative again. The power to arrest and detain is conferred by the detention order itself. Teo's counsel submitted that the nature and conditions of her detention rendered
9750-403: The detention unlawful. The Court of Appeal accepted that detention that was prima facie lawful can become unlawful if the nature or conditions of the detention fall below some minimum standard of treatment, but that extremely inhuman conditions must be shown to exist. In general, where the manner in which the detention is conducted is alleged to be unlawful, the detainee's remedy is to challenge
9875-409: The evidence before him". In addition, UK and Singapore cases indicate that decisions made by public authorities on the basis of errors of material facts are subject to judicial review. An error of material fact occurs when there is a "misunderstanding or ignorance of an established and relevant fact", or where the decision-maker acts "upon an incorrect basis of fact". In E v Secretary of State for
10000-467: The evidence the detainee is likely to act or to continue acting in a manner prejudicial to the security of Singapore, should fall to be objectively determined, as a fact, by a court of law. It hardly needs any emphasis that the judicial process is unsuitable for reaching decisions on national security." Thus, the scope of judicial review was limited to the ordinary judicial review principles of illegality, irrationality and procedural impropriety referred to in
10125-445: The executive dominates the legislative agenda, because the alternate means of political control – holding the executive accountable to the popularly elected legislature – is almost negligible. The judiciary thus exists as an independent check on executive power and it fulfils this function through judicial review of administrative action. This review jurisdiction of the High Court is to be contrasted with its appellate jurisdiction :
10250-423: The exercise of discretionary power warrants court examination. Furthermore, the ISA did not contain any ouster clause applicable to section 8 or 10. The Court also refuted the argument that accountability to Parliament was an alternative safeguard against the executive abusing its powers under the ISA, citing Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd. (1981): It
10375-439: The existing heads of judicial review . In the light of modernisation and the resulting necessity for a more interventionist state , administrative law has an increasingly important role to play in Singapore to ensure that the vulnerable individual has protection and practical remedies against abuse of power by the state. This is particularly so in Singapore's hegemonic , Westminster-based form of parliamentary government where
10500-411: The first line of defence against administrative abuses of powers. Instead, it is perceived that control can and should come internally from Parliament and the executive itself in upholding high standards of public administration and policy. In other words, instead of redressing bad government through the courts, good government should be sought through the political process and public avenues. Courts play
10625-408: The grounds and the facts justifying the executive's decision. In contrast, under the objective test, the exercise of discretion is reviewable by a court of law and the executive has to satisfy the court that there are objective facts justifying the executive's decision. The Court of Appeal rejected the application of the subjective test in favour of the objective test on the following grounds. Firstly,
10750-401: The individual has no alternative remedy such as a right of appeal. If a right of appeal exists, it is more favourable for a person to take advantage of it as the appellate court may substitute its decision for that of the original authority and grant a remedy. An appeal may also involve a reconsideration of the merits of the case and not merely its legality, although this depends on the wording of
10875-400: The inferior tribunal has merely made an error of law which does not affect its jurisdiction, and if its decision is not a nullity for some reason such as breach of the rules of natural justice, then the ouster will be effective. The passage suggests that the Court continued to draw a distinction between jurisdictional and non-jurisdictional errors of law. However, since the decision was based on
11000-422: The intention of the Act". The judge in ex parte Fewings also elaborated on the third type, which may be called discretionary relevant considerations, stating that a decision-maker has limited discretion to decide what considerations to take into account in its reasoning process, but that these considerations cannot be Wednesbury unreasonable . Once a decision-maker has determined that a particular consideration
11125-421: The jurisdiction of the courts to inquire whether the purported exercise of the discretion was nevertheless ultra vires either because it was done in bad faith ... or because as a result of misconstruing the provision of the Act". Finally, the Court was also of the opinion that "the notion of a subjective or unfettered discretion is contrary to the rule of law " because "all power has legal limits", and therefore
11250-403: The land in question did not fall within the categories mentioned in section 75. The Court of Appeal of England and Wales eventually held that the land in question was part of a park, and since the local authority had committed an error as to a precedent fact, its acquisition order was quashed. In Zamir v. Secretary of State for the Home Department (1980), the House of Lords held that whether
11375-450: The latter is derived from the statutory framework, while judicial review is a power inherent as part of the court's supervisory jurisdiction . Both are designed to address different types of wrongs that an administrative decision-maker may commit. Judicial review is available as a means of challenging the legality of decisions of all governmental authorities, though it is regarded as a procedure of last resort that should be used only where
11500-514: The law and equal protection of the law. Judicial review of preventive detention pursuant to the ISA was curtailed by the insertion of sections 8A to 8D. Section 8A defined judicial review in the Act to mean applications for the prerogative orders of mandamus , prohibition and certiorari ; applications for a declaration or an injunction ; writs of habeas corpus ; and "any other suit or action relating to or arising out of any decision made or act done in pursuance of any power conferred upon
11625-552: The law. Administrative law arose as a response to the advent of the administrative state . It is a 20th-century product of English administrative law , which Singapore inherited at independence . Like the English system, Singapore does not have a separate system of specialist administrative courts as is the case in most civil law jurisdictions. Singapore courts are generally conservative in their approach towards administrative law, drawing heavily from English case law in some respects but not engaging in innovative elaboration of
11750-436: The law. In Ong Ah Chuan v. Public Prosecutor (1980), the Privy Council held that the word law in Article 12, among other provisions, refers to a system of law which incorporates fundamental rules of natural justice that had formed part and parcel of the common law of England that was in operation in Singapore at the commencement of the Constitution. The Court of Appeal expressed the view that although sections 8 and 10 of
11875-406: The law. Singapore administrative law is largely based on English administrative law , which the nation inherited at independence in 1965. Claims for judicial review of administrative action may generally be brought under three well-established broad headings: illegality , irrationality , and procedural impropriety . Illegality is divided into two categories: those that, if proved, mean that
12000-485: The legal position in Singapore on this issue is the same as that in the United Kingdom. In Stansfield Business International Pte. Ltd. v. Minister for Manpower (1999), the High Court cited the following passage from the judgment of the Privy Council on appeal from Malaysia in South East Asia Fire Bricks Sdn. Bhd. v. Non-Metallic Mineral Products Manufacturing Employees Union (1980): [W]hen words in
12125-445: The limits of judicial review in politically sensitive issues is better left to the discretion of the executive. It has also been argued that by introducing an ouster clause into the ISA, an externally imposed restraint on the judiciary, Parliament has exhibited distrust towards the judiciary's ability to exercise self-restraint in dealing with ISA cases. The Court of Appeal in Chng Suan Tze has been lauded for its "desire to cultivate
12250-406: The objective approach. Secondly, the Court concurred with judicial opinion expressed in other Commonwealth jurisdictions that courts can objectively review the executive's exercise of discretion in the context of preventive detention on national security grounds. Cases from Zimbabwe , South-West Africa , and St. Christopher, Nevis and Anguilla were referred to with approval. Thirdly, applying
12375-483: The order, holding that it was patently illegal as it was not authorised by law. Under well-established company law principles, directors are not liable for their companies' debts unless there is proof of fraud, breach of warranty of authority or other exceptional circumstances, and nothing in the Industrial Relations Act which established the IAC, changed this. Even though the Act contained an ouster clause,
12500-422: The owner was liable to pay customs duty on them. The High Court held that the goods not having been exported was a precedent fact to the customs officer's power to require the owner to pay customs duty. Therefore, the Court had to decide whether the customs officer's decision was justified by the evidence, and not merely whether there was some evidence on which he could reasonably have reached his decision. However,
12625-416: The plaintiff's sons had done so. The High Court found that the plaintiff's son was not an authorised occupier of the flat, as the term was defined in section 2(1) of the Act as "a person who is named in an application made to the Board as the person who intends to reside in the flat, house or other living accommodation sold or to be sold by the Board under Part IV or any person who is authorised in writing by
12750-400: The potential for abuse of the wide powers conferred upon the executive, the Minister for Home Affairs and Law argued that the judiciary could not be an effective check as a bad government could abuse all discretionary powers and "pack the courts", rendering a judicial remedy "highly illusory". In his opinion, the best safeguard against abuse was for citizens "to ensure that the Government elected
12875-409: The precedent fact has been established. Whether a particular discretionary power is subject to any jurisdictional fact depends on the construction of the legislation which creates that power. The appellants argued that the discretion conferred on the President and the Minister for Home Affairs by sections 8 and 10 of the ISA could only be exercised if the fact – which was jurisdictional in nature – that
13000-518: The production of the detention order. Once the detaining authority had discharged the initial burden of proof, a burden of proof fell on the appellants to challenge their detention on GCHQ grounds. Counsel for Chng, de Souza and Wong argued that although section 10 of the ISA conferred power on the Minister of Home Affairs to revoke a direction suspending a detention order, it did not empower him to subsequently re-arrest and re-detain his clients. Since section 10 should be strictly construed in favour of
13125-524: The provision stated that no decision on or after the date from any other Commonwealth country would apply in Singapore. This was intended to overturn the dicta in Chng Suan Tze that an objective test was to be preferred, and to restrict the courts to applying the subjective test. Section 8B(2) further entrenched this by limiting judicial review only to questions of "compliance with any procedural requirement of [the ISA]". Further, section 8C abolished all appeals to
13250-420: The public authority was not empowered to take action or make the decision it did; and those that relate to whether the authority exercised its discretion properly. The doctrine of simple ultra vires can be explained in this way: a public authority cannot act beyond the powers conferred upon it by the law, usually set out in statutes . In deciding the scope of powers conferred upon the public authority by such
13375-629: The public authority was not empowered to take action or make the decision it did; and those that relate to whether the authority exercised its discretion properly. Grounds within the first category are simple ultra vires and errors as to precedent facts ; while errors of law on the face of the record, making decisions on the basis of insufficient evidence or errors of material facts, taking into account irrelevant considerations or failing to take into account relevant ones, making decisions for improper purposes, fettering of discretion, and failing to fulfil substantive legitimate expectations are grounds within
13500-510: The public body has taken into account irrelevant considerations , or a decision has been based on no evidence or an error of material fact . In the seminal United Kingdom case of Council of Civil Service Unions v. Minister for the Civil Service ("the GCHQ case", 1983), the House of Lords identified three well-established broad headings under which a claim for judicial review of administrative action may be made: These heads of review do not form
13625-410: The public body, consciously or unconsciously, are acting perversely". The second reason is that the courts may not have the necessary expertise to assess the factual situation. Hence, the courts consider it best to leave any interpretation of facts up to those assigned by Parliament to do so. However, the court reviews an error of fact when there is an error as to a jurisdictional or precedent fact ,
13750-401: The question to be decided could have arrived at it". A public authority commits a procedural impropriety when it fails to comply with procedures that are set out in the legislation that empowers it to act, or to observe basic rules of natural justice or otherwise to act in a procedurally fair manner towards a person who will be affected by its decision. The twin elements of natural justice are
13875-415: The same – that is, the High Court may exercise judicial review whether a public authority has committed an error of law that would traditionally have been regarded as jurisdictional or non-jurisdictional. Even before Anisminic , one ground on which the courts could quash non-jurisdictional errors of law was where they were errors on the face of the record. An application for judicial review could be taken if
14000-559: The scope of judicial intervention. Peter Leyland and Gordon Anthony have commented that "fairness" is subject to many different interpretations and thus may be "used to justify intervention in an ever more broad range of cases", which might lead to courts having too much discretion in reviewing cases. Courts are willing to review cases where it is shown that the decision-maker failed to take into account all relevant considerations, or failed to disregard irrelevant considerations. Such considerations are usually identified expressly or impliedly in
14125-512: The second category. Irrationality has been equated with Wednesbury unreasonableness , which is named after the UK case Associated Provincial Picture Houses v. Wednesbury Corporation (1947). According to Council of Civil Service Unions v. Minister for the Civil Service (1983), a public authority's decision may be quashed if it is "so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to
14250-487: The sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning. As this case has not yet been considered by the Singapore courts, it is uncertain whether the rules set out above are part of Singapore law. However, certain criticisms have been made against this legal test with regard to
14375-494: The statement, it is necessary in the public interest that the direction ... be revoked." The Ministry of Home Affairs later stated that investigations had established that the press statement was a political ploy to discredit the Government and that the appellants had sworn statutory declarations reaffirming the truth of their original statements to the ISD. The appellants' one-year detentions were subsequently extended under section 8(2) of
14500-605: The statute in question. On the other hand, when exercising judicial review, the High Court is almost always limited to examining whether public authorities have acted lawfully, and do not evaluate the substantive merits of decisions taken. Current legal thought and practice on administrative law can be seen to crystallise around two contrasting models labelled the "red-light" and "green-light" perspectives by Carol Harlow and Richard Rawlings in their 1984 book Law and Administration . A red-light perspective of administrative law embodies deep-rooted suspicion of governmental power and
14625-425: The statute that underpins the decision. In R. v. Somerset County Council, ex parte Fewings (1995), Lord Justice Simon Brown identified three types of considerations: First, those clearly (whether expressly or impliedly) identified by the statute as considerations to which regard must be had. Second, those clearly identified by the statute as considerations to which regard must not be had. Third, those to which
14750-425: The subjective test in reviewing the exercise of discretion under the ISA would mean giving the executive arbitrary powers of detention, rendering such powers unconstitutional and void. The ISA was enacted pursuant to Article 149(1) of the Constitution which, at the time Chng Suan Tze was decided, stated that any provision of a law designed to stop or prevent a number of specified actions threatening national security
14875-433: The trademarks registered by J.C. Penney, but had failed to consider the following facts: first, J.C. Penney had not used the trademarks on any goods in Singapore; secondly, the registration of the trademarks had expired and did not appear to have been renewed; and thirdly, the applicant herself had not used "JC Penney" or "Penneys" as a trademark on any items she sold. Thus, by ordering the applicant to change her business name,
15000-531: The validity of the conditions of the detention, not the lawfulness of the detention itself. Following the Court of Appeal's decision in December 1988, the Singapore Government introduced bills into Parliament to amend the Constitution and the ISA to reverse the effect of the Chng Suan Tze judgment. The bills were enacted on 25 January 1989, with the constitutional amendments taking effect on 27 January, and
15125-408: Was inadmissible evidence as it amounted to hearsay . Furthermore, as regards the affidavit, the satisfaction of the Government was not the same as the President's satisfaction. The Chng Suan Tze decision is more notable for the issues that the Court of Appeal discussed obiter dicta , having already allowed the appeals on the ground that the respondents had not discharged their burden of proving
15250-407: Was held that since Parliament only confers power on a public authority on the basis that it is to be exercised on the correct legal basis, any misdirection in law will render the decision ultra vires . Thus, in general, all errors of law are now considered as jurisdictional and ultra vires in a broad sense of the term, and the High Court can intervene to correct them. It is still not clear whether
15375-499: Was no basis in law for the impugned action. In Attorney General v. Fulham Corporation (1921), the court held that the corporation was only empowered by statute to provide washing facilities for the residents to wash their clothes adequately. Hence, a laundry service implemented by the corporation was ultra vires . The doctrine was implicitly applied in Singapore in Wong Yip Pui v. Housing and Development Board (1984). In this case,
15500-431: Was that national security is "not a judicial decision" and is not capable of "objective evaluation by the courts". Commentators have noted, though, that the role of the court as enunciated in Chng Suan Tze is merely to be convinced that there is a national security issue at hand, not to inquire into the executive action required to preserve it. In fact, the court applied the doctrine of justiciability which recognises that
15625-430: Was valid notwithstanding that it was inconsistent with three of the fundamental liberties protected by the Constitution, or would, apart from Article 149(1) itself, be outside the legislative power of Parliament . However, the Article did not protect the validity of sections 8 and 10 of the ISA against any inconsistency with Article 12(1) of the Constitution , which guarantees equality before the law and equal protection of
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