The Limits of Judicial Review in Singapore
For some time I have been interested in the way Singaporean courts construe of the role of judges. Singapore is a common law country, that is, a country which, inter alia, applies the doctrine of binding precedent (in Latin, the doctrine of stare decisis), as opposed to civil law countries (say, of the Franco-German variety) which do not follow the same doctrine. Of course, it is another argument altogether as to whether precedent in civil law countries are in fact accorded de facto authority.
My subject today is the key area of judicial review. As all common law lawyers know, this is a loaded term. For our purposes, when I say ‘judicial review’ I do not refer to the power of the Singapore Court of Appeal (“SGCA”) (the apex court in Singapore, much like the United Kingdom Supreme Court) to reconsider its previous decisions in the interests of ensuring a fair and just result (Kho Jabing v Public Prosecutor [2016] 3 SLR 135). Rather, I refer to the power of the court to pronounce on the constitutionality of a statute, and to strike down statutes as void should they be inconsistent with the Constitution of the Republic of Singapore (“the Constitution”). That Singapore courts have the power to do this is clear from a reading of Article 4 read with Article 93 of the Constitution.
Theoretically, Singaporean judges therefore have wide-ranging powers to determine key questions of constitutionality, and by extension, morality, although said judges would always be careful to emphasise their objectivity. We see that the power of judicial review has in fact been used extremely sparingly. One interesting argument (interesting, because you would never hear a US Supreme Court Justice base their decision solely on such ground) is that courts and judges ‘are not the best-equipped to scrutinise decisions which are laden with issues of policy or security or which call for polycentric political considerations.’ (at [93] of Tan Seet Eng v Attorney General [2016] 1 SLR 779) This is the so-called doctrine of non-justiciability: policy decisions require an engagement with issues and prevailing public considerations which a judge just cannot make, whether due to a lack of time, information or technical expertise. Therefore, such decisions are non-justiciable. In many ways, this speaks to a laudable deference to technocratic ability reposed in other branches or departments of government.
The SGCA in Tan Seet Eng, interestingly enough, quoted from that esteemed UK judge Lord Diplock, speaking extra-judicially:
In dealing with matters of public law, modesty I believe to be the most important of judicial virtues – the recognition that judges, however eminent in the law, are not the ultimate repositories of human wisdom in answering the kinds of social, economic and political questions with which parliament and administrators have to deal... The judge above all must resist a temptation to turn sociologist, economist, and politician, and in interpreting the written law to restrict that range of choice so as to exclude solutions which give effect to policies of which he himself strongly disapproves.
No doubt, the Singapore courts often seem to take this further than Lord Diplock envisioned, for he also stated that:
...judicial modesty must go hand in hand with judicial courage... [If any executive or administrative authority... has so acted that it has failed to observe or to apply the law, it is the responsibility of the Judiciary... so to declare and to refuse to give legal effect to such ultra vires... administrative act; for this is the only way which the rule of law will continue to be preserved.
We see, however, that Singaporean judges in general do not have a track record of invalidating either Executive or Legislative decisions. The latter is understandable, for as a ‘Westminster model’ system, Singapore subscribes, like the UK, to the idea of Parliamentary supremacy (there are differing views on this: Article 4 of the Constitution states that the Constitution is supreme; but take into account the local circumstances, and we see instead a country whose politics is dominated by a single party, the People’s Action Party. Therefore, some might argue that Singapore’s is a system of de jure Constitutional Supremacy, but de facto Parliamentary Supremacy). But we see this reticence extend to the Executive arena in cases like Teo Soh Lung v Minister for Home Affairs [1989] SGHC 108, which upheld an effective ouster of judicial review powers where detentions without trials were made under the Singaporean Internal Security Act.
The court is also unwilling, as a rule, to consider what it terms extra-legal arguments. Leaving aside the problem of distinguishing clearly between what is law and what is non-law, this means that practically speaking, Parliament has unchecked ability to rule on any moral basis. This might be seen as a form of legislative moral relativity. The Singapore High Court in Yong Vui Kong v Public Prosecutor [2015] 2 SLR 1129 could not help but repeat that oft-cited argument at [121]: “... it is not within the institutional competence of this Court to adjudicate on the efficacy of caning as a mode of punishment and substitute its judgment for that of the legislature. Any campaign to abolish caning is a matter that must be taken up in the legislative sphere. The courts can and will only pronounce on the legality of measures adopted by the legislature to punish crimes.”
In the case of Lim Meng Suang v Attorney General [2015] 1 SLR 26, a case involving Singapore’s controversial s377A (of the Penal Code) which criminalises homosexuality, The SGCA gave an emphatic statement about its role when exercising judicial review: “The Legislature is an elected body and thus has the mandate from the electorate to promulgate laws which reflect as well as preserve societal morality. Whilst it might (as is the situation in the present proceedings) be difficult to ascertain what the prevailing societal morality on a particular issue is at any given point in time, it is still the Legislature’s task to make this determination.”
This suggests an expectedly limited role of Singapore’s Judiciary as arbiters of morality, as far removed from the likes of the jurisprudence which spawned Roe v Wade as can be. s377A of the Penal Code was declared to be constitutional, and that any contemplated change of the law had to be brought up, and effected, by the Legislature.
Of course, to date, no such revision has occurred.
Interesting read. While the Singapore judiciary is not seen to invalidate either executive or legislative decisions, neither does the UK judiciary in a less ostensible manner. Development of judicial review in the UK has been extensive from the Wednesbury standard to proportionality test. But it can be argued changes in form still does not give UK judiciary substantive powers to challenge Parliament. In fact, in R(Jackson) v Attorney General (2005) UKHL 56, judges posited carefully, that there were limits to parliament sovereignty. The ruling itself deferred to Parliament's capacity to legislate under the Parliament Act 1911 and Parliament Act 1949 when the issue itself concerned the substance of the Hunting Act 2004 which permitted hunting mammals with wild dogs. While the UK has moved on since being mice under the throne in Liversidge v Anderton, one can argue beyond ceding superficial power, hard power remains with the legislative and executive. The only variance between constitutions is therefore constitutional values or from another view, the extent to which the legislation and executive enjoys covert or overt power over the judiciary. In the context of judicial review, perhaps more actual power can be ceded to judiciaries. Yet taking the US Supreme Court and its ability to strike down Congress legislation into account, this contravenes the constitutional values which Singapore and UK subscribes to. Therefore, a possible solution would be to use parliamentary supremacy as a boundary to reason instead of a quandary. Reason within context and emphasise that any judgments made are not meant to make new laws but suggesting possible reforms which parliament has the discretion to review.
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