Judicial Review in Admin Law PDF

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Judicial Review in Admin Law Earliest form of judicial review was of administrative actions in administrative law. Constitutional review only emerged later with the adoption of written constitutions. Art 93 vests judicial power in the court, but there is no provision explicitly allowing for judicial review. The chapter examines which persons are amenable to judicial review. Admin law  Ensures that there is a limit to all power o Public entities are given the power to exercise discretion in order to fulfil a function  Concerned with legal regulation of governance (institutions and activities)  Separation of powers o Are powers exercised lawfully? o Courts serve as a check on the executive 1. How decision making is made 2. Efficiency vs fairness 3. How do governments exercise their discretion 4. The legal regulation of governance 5. Separation of powers

Overview Chan Sek Keong, “Judicial Review – From Angst to Empathy” [28] – [39]  Judicial review is a function of socio-political attitudes of the particular community. In the UK, there is a strong sentiment that institutional remedies for correcting executive overreach are weak. The state has interfered with individual fundamental liberties with a growing welfare system. The courts step in to safeguard individual rights and liberties. o This is an adversarial relationship, a “red-light” view of administrative law (Harlow and Rawlings). o The “green-light” view is that the objective of administrative law is not to stop bad administrative practices but encourage good ones.  The red-light vs green-light perspective comes into play in many concepts in administrative law.  Anisminic – House of Lords held that an administrative decision that was tainted by error of law was a non-decision, and the ouster clause was held inapplicable to the non-decision. Thus, the judge is allowed to decide that the decision-maker has failed to make a decision and must start again. o If followed, Anisminic allows a court that is minded to take a red light view to say that any admin decision that is wrong is merely a “purported” decision, and therefore can be set aside if unjust and unreasonable to the applicant. Judicial review thus cannot be easily ousted by legislation and the court can review all administrative decisions even if this was not the intentioned of Parliament. o However, if a court chooses not to follow this, its jurisdiction is open to being ousted by Parliament, which may not be conducive to good administrative view.

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Doctrine of locus standi – in UK, the courts have applied a uniform “sufficient interest” test for standing since R v Inland Revenue Commissioners. This loosens the test by moving from the focus from the applicant’s relationship to the illegality complained of to merely the merits of the complaint. o In the UK, the test as allowed for a larger number of effective challenges to be brought, which in turn exposes the Executive to greater judicial scrutiny. o In Singapore, the courts appear to have accepted the same test. However, CJ Chan (as he then was) did not think this meant that our courts would apply it with the same rigour. This approach may lead to too many unmeritorious cases to be brought and would curtail the efficiency of the Executive. o The availability of legal aid in the UK allows challenges to be brought more easily compared to the circumstances in Singapore. With fewer challenges, the Singapore government is spared the costs of litigation to defend its decisions against these challenges. Under a green-light approach, the courts can play their role in promoting the public interest by applying a more discriminating test of locus standi to balance the rights of the individual and the rights of the state in the implementation of sound, lawful policies. Challenge to UK Government’s proposal to build third runway at Heathrow Airport – Court did not reject proposal outright, and considered how deficiencies could be cured or considered in due time. The court appeared to see itself in support of the UK government’s function and role. At the heart of the red / green light debate is the trust placed in the government. It may be an obstacle as much as it may be a safeguard. o Example of Duck Tours – had to deal with endless red tape in dealing with seven different government agencies to obtain its license. If they had sought judicial review, a remedy would not have addressed the underlying root problem of bureaucratic red tape. Instead, bad feeling and ill-will would have been generated without benefit to any party.

Thio Li-ann “The Theory and Practice of Judicial Review of Administrative Action in Singapore” [1] – [22], [38] – [47]  Examines origin and state of admin law in Singapore, critiques the ultra vires theory as a necessary but inadequate basis for grounding principles of administrative legality and proposes a modified theory in tandem with the constitutional principle of the rule of law.  Nature of the administrative state and the state of administrative law o State of administrative law o Developed as response to the rise of the administrative state. Seen as the poor cousin of constitutional law in Anglo-American scholarship in the 19 th century. It remained underdeveloped till the 20 th century, where it was noticed that 50% of the cases of the Queen’s Bench Division Reports addressed administrative law rules. Became neglected with WW1. o Liversidge v Anderson – Majority stated that the court would favour a construction that would promote rather than defeat the efficacy of emergency legislation. Lord Atkin dissented strongly, chiding the majority for abandoning their responsibilities and being “more executive-minded than the executive”. (This dissent was reinforced and applied in Chng Suan Tze v Minister of Home Affairs) o English origins are relevant to Singapore as we apply the same principles based on our inheritance of English law (CJ Chan). However, latter day developments may be inappropriate. A fundamental difference is the applicability of the notion of proportionality that is a European concept

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imported into English law by virtue of UK’s treaty obligations (Chee Siok Chin v MHA). o Christine Chinkin, 1985 – Lack of expressed policies or conceptualised theory of judicial review in Singapore, and a general lack of administrative litigation despite the high level of regulation. Concluded that the judicial attitude back then was one of “formal lip service to the common law principles”. o CJ Chan rejected that there was a judicial partiality towards the public authorities. There were three reasons for the relatively low volume of judicial review.  An application may simply fail on the merits of the case.  There may be a disinclination to apply for judicial review, as success may not translate into the desired result.  The practice of taking advice from the AGC helps to reduce the number of decisions vulnerable to judicial review. o There is no overarching general statute such as an administrative justice act. Phang JC (as he then was) advocated the close scrutiny of imported English law for its persuasiveness in logic and reason. o Nature of administrative law in Singapore o Fairness and efficiency: The role of courts and judicial review is influenced by the socio-political contexts of their operation. In a perceived failure in the efficacy of non-legal checks, a court may step into the “constitutional vacuum” by developing and applying principles of administrative legality. However, it is clear that there is a trade-off between fairness and efficiency. o Some judicial valorise the value of efficiency such that it trumps other interests such as constitutional rights.  Chan Hiang Leng Colin v PP – concerned a blanket ban on all publications by the publishing arm of the Jehovah Witnesses, which had been de-registered in 1972. Yong CJ rejected the argument that there must be a “clear and immediate danger” before the religious freedom of the JW could be limited in the form of the deregistration order, stating that it is inconsistent with the wariness of trouble over religious beliefs.  CJ Chan ameliorates this in his 2006 Welcome Reference. Where justice and efficiency inevitably clash, “The fair administration of justice must ultimately trump court efficiency and convenience and convenience”. o Green and red light theories: Opinions on whether a red or green light perspective varies on socio-legal predilections. Essentially, the values of accountability (rule of law) are balanced against that of ensuring administrative autonomy (separation of powers). That Singapore’s development of administrative law is behind the UK may be a virtue (Chan CJ). o Singapore takes a common sense approach. Law took a view of the government as an “indivisible legal entity” in the discharge of its functions such that it was not irrational for one government agency to consider policies under the predominant concern of another. Judicial Review and the Rule of Law o Courts are empowered by Art 93 to review administrative action and constitutionality of legislation. There is no expression of an explicit right to a judicial remedy, as it would clash with legal provisions purporting to oust judicial review. o Justification of judicial review is premised on the rule of law.

PP v Taw Cheng Kong – SGCA declared that the courts will readily invalidate laws derogating from the constitution in upholding the rule of law. Yong Vui Kong v AG – all legal powers… have legal limits.  Marbury v Madison - It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. The ultra vires doctrine is responsible for understanding that judicial process is not concerned with the decision but the decision-making process o This divides the legality of a decision form its merits. Reflective of an application of the separation of powers. 

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Leyland & Anthony “Red and Green Light Theories”  Red light theory o Originates from the laissez-faire political tradition of the 19th Century, embodying suspicion of governmental power. o Dicey maintained that legal sovereignty favours the supremacy / rule of law. It assumes that executive power would threaten the liberty of all if left unchecked. Rule of law ensures that all public and private bodies are not in a position to abuse the law. o The red light approach also seeks to overcome a further problem. In Dicey’s view, law has an essentially adjudicative and controlling function that can be relied upon. This pure view of the citizen being threatened by a development of administrative law is now not so accurate. The current danger is better seen as ministers and officials being sheltered by a body of rules and delegated powers, which have been created to facilitate the tasks of administration. Judicial intervention becomes a kind of safety net that picks up the democratic slack where Parliamentary control falls short. A natural resistance to executive discretion is what manifests from this approach.  Green light theory / functionalism o Derived from utilitarian tradition. Its priority is to encourage the contribution of the state, which is regarded as effective in delivering communitarian goals. Law is an enabling tool that can provide the proper authority and framework for the parliament to govern consensually by giving political legitimacy and moral persuasiveness.  The counterargument is that the parliament will no longer be a forum of accountability, as it would fail to maintain scrutiny of the executive. Jeyaretnam Kenneth Andrew v AG [48] – [50] and [54] – [56]  Case challenging MAS’s contingent loan to the IMF to tackle the Eurozone financial crisis on the grounds that this contravened art 144 of the Constitution, as the requisite parliamentary and presidential approval had not been obtained.

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Regarding Vellama: In CJ Chan’s speech, he expressed his opinion that judicial review is a “function of socio-political attitude in the particular community”. The Red/green-light theory highlights the integral role in which political and economic contexts play in determining the suitability of either position. In a red-light view, public law has been perceived as constraining the exercise of public power, as opposed to a means of ensuring that public bodies act properly from a legal perspective. o Principal distinction between Diceyan constitution where decisions are made by a responsible government subject to parliamentary scrutiny, and a communitarian republican tradition where citizens achieve self-fulfilment through participation in politics and decision-making. o In the former, judicial review would be available for citizens to protect their own interests, whereas the latter would have relaxed rules of standing to allow citizens to act to contain governmental abuse. There is thus a close nexus between the role of public law / locus standi and the various political theories underpinning the approaches to the question of standing in different jurisdictions. Summing up the law on locus standi o There must first be a public duty which has been breached  Where the duty generates correlative private rights, the applicant would have locus standi  Where a non-correlative rights generating public duty is breached, and the breach is of sufficient gravity such that it would be in the public interest of courts to hear the case, the applicant may also be accorded locus standi as well

Distinction between Appeal and Judicial Review “The Supervisory / Appellate Distinction”, Leyland & Anthony  Recalling Dicey’s doctrine of the rule of law, there is a tripartite assumption that government should be under the law, no one should be subject to arbitrary power, and all are equal before the law. This would result in courts having the jurisdiction to rule upon the legality of government action, but not the constitutionality of primary legislation as each organ should be allowed to fulfil their constitutional function. In a separation of powers, the court should refrain from taking over the reigns of administrative discretion through review, as that is the task of the Cabinet.  However, Parliament often provides for appeal from administrative decisions on matters of fact, law or merits. This is a creation of statute. o A person who is dissatisfied with a decision will have the right of appeal in an appellate jurisdiction. However, this is only where statutory provisions have created such an avenue.  The Courts have felt it appropriate to develop a supervisory jurisdiction that may operate without reliance on statutory provisions. The kind of remedy available under a supervisory jurisdiction is a limited one. o The original decision may be held as void, as there was no legal authority to make the decision, but the courts do not have the final decision on the matter. Parliament has not provided an appeal, and all the supervisory court may do is decide whether the decision is intra or ultra vires. If the latter is found, then it is void ab initio. If no challenge is made, the decision is implemented and taken as valid. The time limit for the challenge is merely three months.

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o Further, errors of law may go to the jurisdiction of the decision-maker, and Judicial review is therefore to be regarded as a procedure of last resort after exhausting alternative remedies such as a right of appeal to a tribunal. o An appeal might reconsider the merits of the case, not just its legality. Judicial review on legality would merely prolong disappointment with the decision not being barred should its implementation be procedurally sound and intra vires.

R v Secretary of State for the Environment, ex parte Hammersmith at 561  The role of the judiciary is that of a referee. Rules made by parliament are supplemented by the background of the common law. However, Parliament tends to lay down different rules for different situations, and it is for the courts to study, interpret and apply new versions of the rules. The court is not so much concerned with what happened on the “field of play” or how the well conceived the rule was, but more with whether what has happened was or was not in breach of the rules. o Thus, questions of illegality, procedural impropriety and bad faith or improper motive are within the purview of the court. Wong Keng Leong Rayney v Law Society of Singapore at 965 - 966  Applicant was advocate and solicitor of the Supreme Court of Singapore. He unknowingly had his meetings with the complainant recorded that evinced his practice of illegitimately boosting his own business by offering referral fees to estate agents. The recordings were used against him in proceedings before a Disciplinary Committee. The applicant submitted that there was no case to answer as Lee’s evidence was obtained by illegal or improper means. The DC disagreed and refused to exclude the evidence. The applicant brought an application for leave to seek judicial review of this finding.  There is a clear distinction between the powers of a superior court in judicial reviews and appeals. The two are distinct avenues designed for two different types of wrongs that a tribunal may commit. o Review: Limited to examining whether a tribunal has exceeded its jurisdiction, abused its discretion, failed natural justice, or acted irrationally, unreasonably or in bad faith. o Appeal: Has a wider scope. Appellate court may evaluate the substantive merits of the decision arrived at by the tribunal.  The task of reviewing the substance of a decision is for the administrative body under the review, and the court cannot do so without the law allowing it explicitly.  In the show cause proceedings of the cause, the Court does not sit as an appellate court of the DC. However, it does have the power to review the merits of its findings. Without anything in the applicant’s submissions that resembles a procedural or processual challenge to the proceedings before the DC and the merits, his claims are more appropriately resolved during the “show cause proceedings” rather than through judicial review.

Deference to Political Branches of Government R v Secretary of State for the Home Department, ex parte Brind at 757 – 758, 765  Addressing the lawfulness of directives on “Wednesbury” grounds o "it applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”  It is not suggested that the minister has failed to direct his attention at any material matter, or that he had brought his attention to immaterial considerations.

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The failure to mount such a challenge in such areas is important. Where a fundamental human right (here, free speech) is interfered with, its justifications must be looked at closely. There remains potential criticism under the Wednesbury grounds. This standard of unreasonableness has been criticised as being too high that no authority would ever fail it. However, this is because it is expressed in terms that confine the jurisdiction to a supervisory jurisdiction. o It would be a wrongful usurpation of power by the judiciary to substitute its view on the merits of a decision and to quash it on that basis. If no reasonable minister properly directing himself would have reached the impugned decision, the minister has exceeded his powers and has acted unlawfully. The decision would thus be quashed. The less emotive test to use is “could a decision-maker acting reasonably have reached this decision?”...