1.1 Which categories of administrative decisions are eligible for review (administrative regulations/individual decisions)?

Transcription

1 1. Jurisdiction or competence 1.1 Which categories of administrative decisions are eligible for review (administrative regulations/individual decisions)? The High Court has power of judicial review over all administrative and quasi-judicial tribunals except where expressly excluded by any Act of Parliament. This power arises by virtue of Article 93 of the Constitution, which vests judicial power of Singapore in the Supreme Court of which the High Court is a constituent part, and section 3 of the Supreme Court of Judicature Act which provides that the Supreme Court shall be a superior court of record. Judicial review includes deciding on the legality of any decision made by a tribunal or public authority which may be based on jurisdiction, procedural impropriety, bad faith or irrationality. Apart from the power of judicial review, in many Acts of Parliament, the High Court is vested with jurisdiction to hear appeals from tribunals. Some of these Acts provide for full powers on appeal, e.g: Accountants Act, section 54 Architects Act, section 31H Employment Act, section 117 Land Surveyors Act, section 28 Optometrists and Opticians Act, section 22 Property Tax Act, section 35(3) Registered Designs Act, section 62 Stamp Duties Act, section 40 Trade Marks Act, section 75(2) Other Acts provide partial powers on appeal, e.g: Building Maintenance and Strata Management Act, section 98 Casino Control Act, section 146D Dental Registration Act, section 41 Goods and Services Tax Act, section 54 Income Tax Act, section 81 Land Acquisition Act, section 29 Land Transport Authority of Singapore Act, section 30 Medical Registration Act, section 46 Pharmacists Registration Act, section 47 Work Injury Compensation Act, section According to which criteria is the jurisdictional competence of the court or tribunal (hereafter court ) determined? Are there certain decisions of the Executive or public authorities which cannot be submitted to review, by reason of the nature or substance of such decision? Every tribunal is a creature of statute and therefore it only has such powers as are vested by that written law. The power of the High Court on judicial review arises from its inherent judicial power to rule on the legality or otherwise of the decision of the tribunal, whether such illegality stems from lack of jurisdiction or failure to comply with procedure or with the rules of natural justice, or excess of power or irrational exercise of such power.

2 The Internal Security Act expressly excludes review of executive decisions on preventive detention, other than on ground of mala fide: section 8B. However the Constitution provides an internal review process as a safeguard against Executive excess; Article 153 thereof establishes an advisory board chaired by a High Court Judge to review all preventive detentions made under the Internal Security Act. Section 39A of the Immigration Act prohibits judicial review of the decision of the Minister under any provision of that Act except on ground of procedural impropriety. 1.3 Please provide relevant case-law illustrating the extent and limits of the scope of the competence of the court in charge of review. The Court of Appeal summarised the scope of judicial review in Public Service Commission v Lai Swee Lin Linda [2001] 1 SLR(R) 133; Teo Soh Lung v Minister for Home Affairs [1990] 1 SLR(R) 347, Dow Jones Publishing Co (Asia) Inc v A-G [1989] 1 SLR(R) 637, Chng Suan Tze v Minister for Home Affairs [1988] 2 SLR(R) 525. Singapore law adopts the principles of judicial review espoused in leading English cases such as Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 and CSSU v Minister for the Civil Service [1985] AC Procedure 2.1 General description of applicable procedural rules: a) Where can these rules be found; by which statute or regulations are they defined? The procedural rules for judicial review are found in Order 53 of the Rules of Court. The procedural rules for appeals from tribunals under any written law are found in Order 55 of the Rules of Court. b) Are the various procedural steps in the hands of the parties and/or the court and which role do they respectively play? The various procedural steps are in the hands of the parties who have to comply with the applicable rules prescribed. c) Is there a prosecutor? If so which role does he/she play? There is no prosecutor. Under the common law system that operates in Singapore, a person seeking to enforce his rights or a ruling that the decision of a tribunal affecting him is illegal or void makes an application to the High Court in his own name. d) Are the court proceedings mainly written or oral, i.e. do the parties communicate by exchanging written presentations or in the form of an oral debate before the court? The court proceedings are generally oral in nature. However evidence is usually adduced through affidavits, with cross-examination ordered if there are disputes of

3 material facts. Written submissions are often ordered to be exchanged prior to the hearing to expedite the proceedings. e) Is the case determined by a single judge or a panel of judges? The application at first instance is heard by a single Judge. An appeal lies to the Court of Appeal which is constituted by 3 Judges, or any greater odd number of Judges What conditions must be fulfilled in order to confer the right to make a claim for review? Must the plaintiff show some form of personal interest? If so, is it defined in a broad or narrow manner? Please provide relevant case-law. The plaintiff must be a party affected by the decision being challenged. It is defined in a broad manner. Relevant authorities are Eng Foong Ho and others v Attorney- General [2009] 2 SLR(R) 542, Chan Hiang Leng Colin and others v Minister for Information and the Arts [1996] 1 SLR(R) Does the plaintiff have direct access to the court, or is he/she obliged to submit his/her demand through a counsel/attorney? The plaintiff has direct access to the court and is not obliged to be represented by counsel. The judiciary has a programme to provide information to litigants in person to assist them in pursuing an action in court. 2.4 Can a legal demand be submitted to an administrative court using electronic technologies (Internet)? Yes. All applications to the High Court are filed through the internet. A party who is unable to file in this manner may do so manually through a service bureau. 2.5 Is there some form of public or private legal aid system aimed at providing assistance to a person who cannot afford an attorney? Yes. Government funded legal aid is available through the Legal Aid Bureau (established under the Legal Aid and Advice Act) to persons who pass the means test. 2.6 When a claim is made to the court, is the right of the relevant public authority to implement the decision stayed or suspended until the court has determined the case? No. Section 27 of the Government Proceedings Act prohibits the court from issuing an injunction against the government, whether interim or final, but the court may make a declaratory order of the rights of the parties in lieu of an injunction. By convention, the government and other public authorities abide by the effect of such declarations. 2.7 Can the court deliver an injunction ordering the Executive or a public authority to produce a document to which the other party could not previously have access? (Please provide relevant case-law)

4 Yes. The Rules of Court applies to any civil action against the government, subject only to the provisions of the Government Proceedings Act. The government may be ordered to make discovery of documents and answer interrogatories pursuant to section 34 of the Government Proceedings Act and Order 73 of the Rules of Court. The government may claim public immunity privilege in respect of any document certified by a senior official 2.8 Are there emergency or interim procedures? Are they simply aimed at delivering preliminary injunctions (such as a Temporary Restraining Order) or at taking provisional measures, or can they also resolve a fundamental question? Yes. On interim injunctions, see 2.6 above. 3. The powers of the administrative judge 3.1 What is the hierarchy of legal standards (Constitution, international law, statutes) that the court takes into account when carrying out review? The Constitution is the supreme law of Singapore and any written law that is not consistent with it is void to the extent of the inconsistency. Judicial review is governed by common law principles, which operates subject to any modification made by any Act of Parliament. 3.2 When the Executive or a public authority gives its interpretation of a statute, can the lawfulness of such interpretation be challenged in court? If so, according to which standards and criteria? Is the court bound by policy decisions of the Executive or a public authority? The court is the final authority on any question of law and is not bound by any interpretation offered by the Executive or public authority. In interpreting any statute the court complies with common rules of interpretation as well as written rules found in the Interpretation Act. The court may look at secondary material such as the deliberations in Parliament during the passage of the Bill or any treaty relevant to the Act. 3.3 If the executive gives its interpretation of treaty law, is the court bound by such interpretation? No. 3.4 Insofar as discretionary measures are concerned, which type of review does the court exercise? Provide if possible, relevant case law to show how the court verifies the reasonableness of a decision of the Executive or a public authority and checks whether the reasons are consistent with the substance of the decision. The test is whether the decision is one that no reasonable person in that position could have made, as decided in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

5 3.5 Is the court simply empowered to quash (declare null and void) the decision or to dismiss the legal demand? Instead of quashing the decision, is it within the authority of the court to amend or modify the decision? Can the court substitute an entirely new and different decision? Can the court reconsider the merits of the decision? In a judicial review action the court only has the power to quash the decision or dismiss the plaintiff s claim. The court has no power to substitute its own decision. However in cases where the Act confers power of appeal, the court has the power to reconsider the merits and substitute its own decision. 3.6 When the court quashes a decision taken by a public authority, does this take effect retrospectively, when the original decision was made, or simply when the court rules? Does the judge have the power to fix the time from which the annulment operates? On what principles is a date chosen? Although generally if a decision is held to be null and void for illegality, that decision would not have had any effect, there may be circumstances that a court would rule that the court ruling would take effect from a specific date in the past or the future, as the justice of the case requires. 3.7 What means are available to a judge to compel the administration to enforce a decision which the executive does not wish to carry out? The court may make a declaration. By convention, the Executive complies with the ruling of the court as the Attorney-General would advise. Under Article 35 of the Constitution, the Attorney-General is the legal advisor to the government and his term of office is protected.