A Square Peg in a Round Hole – The Suitability of Judicial Review as a Remedy for All Constitutional Wrongs

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A Square Peg in a Round Hole
–
The Suitability of Judicial Review as a Remedy for All Constitutional Wrongs

Legal Citation Guide:
McGill Law Journal’s Canadian Guide to Uniform Legal Citation, 7th Ed.

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I. Introduction
The Constitution of the Republic of Singapore is the supreme law of the land1, and establishes a form of parliamentary government based on the separation of the legislative, executive and judicial powers. However, while each arm of the government operates independently of the other, this does not mean that their powers are unfettered. For, in the words of Chan CJ (as he was then), “all legal powers, even a constitutional power, have legal limits”2. To this end, the court’s judicial review jurisdiction – which refers to the power of the
Judiciary to pronounce on the constitutionality of an act or statute3 – plays an important role.
The court has a duty to declare invalid any exercises of legislative or executive power which are inconsistent with the Constitution, and the availability of judicial review hence constitutes an important judicial remedy for an aggrieved party claiming a violation of Constitutional rights4. That being said, judicial review is not always the appropriate solution, for it too is hampered by shortcomings, one of which is the limits to the court’s judicial power, which makes it improper for courts to exercise its judicial review powers in all circumstances. Specifically, not every executive action should be amenable to judicial review. There are, and ought to be, certain cases where it would be inappropriate for the Judiciary to substitute the Executive’s opinion with that of the judges. Such an encroachment on prerogative executive functions would infringe on the separation of powers doctrine and could result in courts interfering in matters that they are ill-equipped to handle. In such situations, there are alternative remedies that could be pursued.
Nevertheless, it is submitted that by and large, executive actions should remain within the purview of the courts. The courts should still – at the very least – oversee the Executive’s adherence to Constitutional procedure in the exercise of its powers. Only in very rare cases should executive actions be completely immune to judicial review.

1
Constitution of the Republic of Singapore (1999 Rev Ed Sing), art. 4
2
Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR 239 at [149], citing Chng Suan Tze v Minister of Home Affairs [1988] SLR 132 with approval
3
Kevin YL Tan & Thio Li-Ann, Constitutional Law in Malaysia & Singapore, Third Edition
(LexisNexis 2010), at 542
4
Wong Keng Leong Rayney v Law Society of Singapore [2006] 4 SLR (R) 934 at [45]

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II. The Need for Judicial Review
This section will briefly explore where the Judiciary’s powers of judicial review are derived from, as well as how the role of the Judiciary in Singapore necessitates the court’s exercise of judicial review.

A. Judicial Review in Singapore
In Singapore, article 93 of the Constitution vests judicial power exclusively in the Supreme
Court and Subordinate Courts. In Mohammad Faizal bin Sabtu v PP, the court noted that the judicial power of the Supreme Court is derived directly from the Constitution and is thus of co-equal constitutional status with the other branches of government5. Although the
Constitution does not define “judicial power”, then-CJ Chan has offered a core meaning extracted from case law, stating that in essence, the judicial function is to adjudicate upon controversies between a State and one or more of its subjects, or between the subjects of a
State6.
Yet, while it is clear that the Judiciary is vested with judicial power, the Singapore
Constitution does not expressly provide it with the power of judicial review. Nonetheless, such authority is to be found in the inherent powers of the court, and is asserted by the courts themselves7. Indeed, it was held in Chan Hiang Leng Colin v PP [Colin Chan] that the
Judiciary, as the branch of government that is constitutionally vested with the judicial power, has the duty to uphold the Constitution by invalidating any exercise of legislative or executive power which exceeds the limits of power conferred by the Constitution or contravenes the prohibitions provided by the Constitution8. More pertinently, the First
Schedule of the Supreme Court of Judicature Act empowers courts to review executive actions by granting courts the power to issue various prerogative orders that allow for judicial control of the exercise of executive powers9.

5
Mohammad Faizal bin Sabtu v Public Prosecutor [2012] 4 SLR 947 at [16]
6
Ibid at [27]
7
Supra note 3
8
Chan Hiang Leng Colin v Public Prosecutor [1994] 3 SLR (R) 209 at [50]
9
Supreme Court Judicature Act (Cap 322, 2007 Rev Ed Sing), s.1, First Schedule

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B. The Constitutional Role of the Judiciary
The principle of separation of powers is part of the basic structure of the Singapore
Constitution and aims to diffuse state power among the different organs of the state10, so as to avoid the dangers of absolutism. This is clearly seen in the Constitution, which demarcates the powers of each branch of government.
It therefore follows that, to quote then-CJ Chan in Law Society of Singapore v Tan Guat Neo
Phyllis [Phyllis Tan], “as each government arm is limited in its authority by the Constitution itself, it is necessary that there should exist a means whereby each arm may be prevented from acting beyond its constitutional powers. Under the Constitution, the means adopted and recognised by all three arms of government is the judicial power of the court to review the legality of legislative and executive acts and declare them unconstitutional and of no legal effect if they contravene the provisions of the Constitution.”11
This pronouncement affirms the constitutional role of the Judiciary in upholding the rule of law – the supremacy of the law, as opposed to the arbitrary exercise of power12 – through judicial review. Due to the principle of constitutional supremacy, the courts in Singapore have the power to strike down unconstitutional laws. As consistently reiterated by the
Singapore courts, all power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power.13 Thus, in order to ensure that the discretionary power conferred upon the government and other legal actors is exercised subject to the constitutionally-defined limits of law, the Judiciary is required to examine the exercise of executive powers though judicial review14, which is the “principal engine of the rule of law” and the “means by which legal rights are protected”.15 Hence, judicial review is an important remedy for constitutional wrongs.

10
Supra note 5 at [12]
11
Supra note 2 at [143]
12
Parliamentary Debates Singapore: Official Report, vol 71 at col 592 (24 November 1999)
(Associate Professor Ho Peng Kee)
13
Chng Suan Tze v Minister of Home Affairs [1988] SLR 132 at [86]. This was most recently reaffirmed by the SGCA in Yong Vui Kong v Attorney-General[2011] SGCA 9 and Ramalingam
Ravinthran v Attorney- General [2012] SGCA 2.
14
Chen Zhida, “The Nature of Judicial Review in Singapore” (2013) 31 Sing L Rev 79 at 86
15
Chan Sek Keong, “Judicial Review – From Angst to Empathy” (2010) 22 Sing Ac LJ 469 at 472

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III. The Appropriateness of Judicial Review as a Remedy for Constitutional Wrongs
Unfortunately, judicial review is not an appropriate remedy for all constitutional wrongs.
There are several limitations to the court’s power of judicial review, chief of which is that there are certain prerogative actions by the Executive that are beyond the purview of the court. A. The Limitations of Judicial Review
One of the principle flaws of judicial review is that it must first be argued by the legal counsel. If counsel fails to do so, the court will not even consider judicial review, as the court is precluded from addressing issues that have not been pleaded. The case of Abdul Wahab bin
Sulaiman v. Commandant, Tanglin Detention Barracks16 [Wahab] was identified by formerCJ Chan as an apt example of a wrongly-decided case due to counsel’s lack of pleading17. In
Wahab, the High Court held that any decision from the Military Court of Appeal (MCA), being a superior court as provided by the SAF Act, could not be reviewed by the High
Courts. This decision was criticized for failing to consider that the MCA was subject to judicial review by virtue of Art 93 of the Constitution, which vested judicial powers in the
High Courts. However, what was not pointed out was that the applicant’s counsel had failed to plead the judicial review argument; had he done so, the Judge might well have come to a different decision.18
In addition, judicial review is reactionary – it cannot prevent or pre-empt Constitutional wrongs, and only comes into play after the fact. In this sense, it “may serve as a ‘safety net’ but cannot ‘make the system work’”19. Hence, Singapore prefers the concept of “government by honourable men (junzi)”, which will be addressed later.
Lastly, judicial power is also limited by the Constitution itself. For example, Art 149(3) of the
Constitution expressly prevents Art 93 from invalidating any law “enacted pursuant to this clause”, curtailing the Judiciary's ability to exercise judicial review of executive decisions made in accordance with any legislation against subversion. In such circumstances, where the

16
[1985-1986] S.L.R.(R.) 7
17
Chan Sek Keong, “The Courts and the Rule of Law in Singapore” [2012] SJLS 209 at 214
18
Ibid. 19
Supra note 14 at 90

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Judiciary’s powers are greatly undermined, judicial review ceases to be an appropriate remedy. B. The Justiciability of Executive Actions
But perhaps the biggest – and most obvious – reason why judicial review is not an appropriate remedy for all constitutional wrongs is the non-justiciability of executive actions.
It is an established general principle that there are clearly provinces of executive decisionmaking that are, and should be, immune from judicial review20.
However, it is submitted that there only ought to be rare instances of executive actions that are completely beyond the purview of the courts. In this regard, the Singapore courts have rightfully maintained the judicial review of procedural compliance in cases involving executive actions.

(i) Reasons for Non-Justiciability
In Lee Hsien Loong v Review Publishing [Lee], Sundaresh Menon JC (as he was then) pointed out that the general principle that not all executive actions should be amenable to judicial review is merely a reflection of the separation of powers doctrine which is incorporated into Singapore’s constitutional framework21. Based on this doctrine, each branch of government should operate independently and carry out the actions it has been suitably designed to undertake, and should not interfere with the functions of the other. Should the courts be able to adjudicate every executive decision, the Judiciary would effectively be undertaking the role of the Executive in a clear breach of the separation of powers doctrine.
Moreover, it is an inevitable fact that each of the respective government branches does not have the specialist knowledge or resources to carry out the roles of the other. Hence, the separation of powers doctrine requires each to stick to the functions that they are best equipped to handle. In line with this principle, courts should not be permitted to review all executive actions as some subject matters are simply beyond the expertise of the courts, such that it would be inappropriate for judges to substitute executive decisions with their own

20
Lee Hsien Loong v Review Publishing Co Ltd 2 SLR 453 at [95]
21
Ibid.

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opinions. This much was recognized by (then) Menon JC in Lee, where he averred that justiciability depends on the subject matter in question: “where it is the executive that has access to the best materials to resolve the case, its views should be regarded as highly persuasive, if not decisive.”22 He then stated that “where the decision involves matters of government policy and requires the intricate balancing of various competing policy considerations that judges are ill-equipped to adjudicate because of their limited training, experience and access to materials, the courts should shy away from reviewing its merits.”23
Finally, it was also recognized in Lee that there are areas of prerogative power that the democratically elected Executive has been entrusted by the public to take charge of, and hence, it is to the electorate, and not the Judiciary, that the Executive is ultimately accountable24. Furthermore, the Judiciary is not answerable to the people and judges have security of tenure, and hence they are insulated from the consequences of their decisions. In this regard, it is not the unelected Judiciary’s place to question the decisions that the
Executive has the public mandate to make.

(ii) Executive Actions Beyond the Court’s Purview
Case law has identified several instances where courts should not review executive actions. In
Civil Aeronautics Administration v Singapore Airlines25, the Singapore Court of Appeal
(SGCA) refused to conduct an independent inquiry of the evidence to determine whether
Taiwan was a state. The court remarked that such a question, which involved matters of policy, was eminently a matter within the exclusive province of the Executive to determine26.
It was asserted that courts should not get involved in international relations as they are illequipped to deal with such issues27.
The court in Lee similarly opined that executive decisions concerning the conduct of foreign affairs – which includes recognizing foreign governments, international boundary disputes and interpreting international treaties – were unjusticiable28. These were said to belong under

22
Ibid at [98]
23
Ibid.
24
Ibid.
25
Civil Aeronautics Administration v Singapore Airlines Ltd [2004] 1 SLR 570
26
Ibid at [22]
27
Supra note 25 at [27]
28
Supra note 20 at [96] – [97]

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the umbrella of matters of “high policy”, which also included the dissolution of Parliament and national defence matters pertaining to war and the deployment of troops, which were beyond the purview of the courts. This goes back to the separation of powers and the court’s recognition that judicial power, as with all Constitutional powers, has legal limits. It is difficult to argue that courts can justifiably gainsay executive decisions involving foreign policy and national defence, for unelected judges lack the resources, expertise and public mandate to do so.

C. The Balance Struck by Singapore Courts with Regard to Executive Actions
That being said, it is pertinent to note that while not every executive action should be subjected to judicial review, the span of such executive actions immune to judicial review should be relatively small. As established in Yong Vui Kong v Attorney-General [Yong], where judicial power is vested in an independent judiciary, there will (or should) be few legal disputes between the State and an individual from which judicial power is excluded.29
In this regard, the Singapore courts have adopted a measured approach to judicial review, striking a balance between the courts’ admitted lack of expertise and the need to retain legal constraints on power to uphold the rule of law. A few examples will be explored.

(i) Prosecutorial Powers
It was established in Phyllis Tan that the Attorney-General has an unfettered discretion as to when and how he exercises his prosecutorial powers vested in him under Art. 35(8), subject only to the constitutional power of the court to prevent the prosecutorial power from being exercised unconstitutionally30. In this sense, the Attorney-General’s prosecutorial power is subjected to certain limits. It was held that the exercise of the prosecutorial discretion is subject to judicial review in two situations: first, where the prosecutorial power is abused, ie, where it is exercised in bad faith for an extraneous purpose, and second, where its exercise

29
Yong Vui Kong v Attorney-General [2011] 2 SLR 1189 at [31]
30
Supra note 2 at [145].

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contravenes constitutional protections and rights31. This was later affirmed by the SGCA in
Ramalingam Ravinthran v Attorney-General32.
Therefore, the position taken by the Singapore courts is a calibrated one: it is recognized that the Attorney-General should have full discretion over the manner in which he exercises his prosecutorial power (which is co-equal with judicial power), but only to the extent that it is exercised constitutionally. At which point, in the interests of upholding the Constitution and rule of law, the courts will step in.

(ii) Clemency
In Yong, (then) Chan CJ held that as the clemency power under Art 22P was vested exclusively in the Executive, it was not justiciable on the merits. Assuming the clemency power is exercised in accordance with law, the merits of the clemency decision made will fall outside the purview of the courts33. The EP’s decision (based on the advice of the Cabinet) on whether it was appropriate to grant clemency is thus solely his to make. However, the learned
Chief Justice, in asserting that the clemency power was not one that was beyond any legal constraints or restraints, held that courts have the power to review the clemency power on the same legal basis as that for prosecutorial discretion established in Phyllis Tan i.e. where it is exercised in bad faith for an extraneous purpose, and where its exercise is unconstitutional.
These constraints are quite clearly directed at the procedural safeguards prescribed by Art
22P. The learned Chief Justice was of the opinion if “conclusive evidence is produced to the court to show that the Cabinet never met to consider the offender’s case at all, or that it did not consider the Article 22P(2) materials placed before it and merely tossed a coin to determine what advice to give to the President”, the court would then be able to intervene. An inability to intervene in such circumstances would, it was said, render the rule of law nugatory. 31
Ibid at [149].
32
[2012] SGCA 2
33
Supra note 29 at [75]

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(iii) Detention Orders
Art 149(3) expressly prevents Art 93 from invalidating any law “enacted pursuant to this clause”, limiting the scope of judicial review over anti-subversion laws passed pursuant to any legislation against subversion. The s. 8B(2) clause in the Internal Security Act [ISA]34 provides that there shall be no judicial review of any act done or decision made by the
President or the Minister under the provisions of the Act; judicial review is only available for questions of procedural compliance. As such, it was held in Teo Soh Lung v Minister of Home
Affairs [Teo] that “the question whether a particular provision in any law enacted pursuant to
Art 149 is designed to deal with a particular situation is non-justiciable” and that “it is clear from the Constitution and the ISA... that whether preventive detention is necessary in a particular case is left to the subjective satisfaction of the Executive”.35
Much like matters concerning national defence, judges like the specialized training and knowledge required to review executive decisions concerning national security. The
Executive, however, is fully capable of making policy decisions regarding such matters.
Hence, an enquiry into the procedural requirements is apt in such cases.

D. Alternatives
Though judicial review may be an appropriate remedy for certain constitutional wrongs, there are alternative remedies available with regards to executive actions. The ballot box has been touted as an appropriate remedy for constitutional wrongs involving executive decisions. The
Executive are answerable to the electorate; if the Executive fails to inspire public confidence, due to unpopular policies and continued violation of constitutional rights, then its leaders will pay the price at the next Election. In this regard, it is arguably more appropriate for the
Judiciary to abstain from making a judgment on executive decisions, and to allow for the inherent democratic mechanisms to take effect and sweep the unpopular leaders out of power.
However, this so-called check on the Executive is rendered illusory in Singapore. The
People’s Action Party (PAP) is still the dominant force in Singapore and enjoys deeply entrenched support. In addition, given our Group-Representative Constituencies (GRCs) and first-past-the-post voting system, it is extremely difficult to displace the incumbent Executive

34
(Cap 143, 1985 Rev Ed Sing)
35

Teo Soh Lung v Minister of Home Affairs [1989] 1 SLR(R) 461 at [49].

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members, who as senior PAP members will be placed in strong, advantageous GRCs to minimize the risk of them being voted out. Furthermore, the ballot box is a scant remedy to those seeking timely recourse for the alleged-Constitutional wrongs, such as those facing the death penalty. In such circumstances, voting at an election that occurs once every 5 years is not an option.
It is suggested that the concept of “government by honourable men (junzi)” could be a viable alternative, where trust and expectations are placed on political leaders and public servants to conduct themselves based on high moral standards. While not exactly a remedy in the sense that the control of abuses of power comes internally from the Executive itself in upholding high standards of public administration and policy, the exercise of executive powers are nonetheless still kept in check by political and moral limits, rather than legal limits. Such an alternative reflects the idea that the primary check on the Executive should lie in the political sphere. Unfortunately, such a concept is too idealistic to buy into. Seeking to limit abuses of power by the Executive by simply trusting them to be morally upright is fatalistic and untenable. While it might be appropriate to buy into the junzi concept as a general guiding principle for political leaders, the “safety net” of judicial review should still be available.

IV. Conclusion
Judicial Review is not a perfect panacea. Due to the conflicting aims of the separation of power doctrine and the courts duty to uphold the rule of law, courts are often stuck between a rock and a hard place: do they adopt a robust approach to judicial review but overstep the constitutionally-defined boundaries of power, or do they refuse to intervene but compromise the rule of law in Singapore? It is submitted that courts have adopted as fair and as balanced an approach under the circumstances. Given that the alternative remedies to constitutional wrongs involving the exercise of executive power are equally – if not more – flawed that judicial review, it is submitted that judicial review, while not an appropriate remedy for every constitutional wrong, is still the most appropriate panacea to constitutional wrongs available.