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separation of powers doctrine, Singapore adopts a less pure distinction, with an overlap between the legislature and executive7. Thus, there are arguably two main organs of the state – the parliament/executive and the judiciary. Judicial Review In Singapore, constitutional rights are principally protected through judicial review. Judicial review, hinging on the principle of legality,8 is thus the “principle engine(s) of the rule of law”9 in Singapore. Unlike the UK, however, the judiciary’s power and basis for judicial review is derived from Article 93 of the Constitution, which vests judicial power in the Supreme Court10. The court is able to declare an “Act of the Singapore parliament invalid for inconsistency with the Singapore Constitution and, hence, null and void.”11 A decision would thus be inconsistent with the Constitution in two main ways: by overstepping the separation of powers laid out in the Constitution (ultra vires), or by infringing on fundamental liberties as enshrined in Part IV. The former usually deals with decisions by the executive, while the latter is raised with regards to both an executive power and an Act of Parliament. The ultra vires doctrine shall first be explored. The principle of the separation of powers is implicit in the Constitution, with Part V, VI and VII laying out the duties and powers of the executive, legislature and judiciary respectively. Although the Westminster system, as adopted in Singapore, only allows for a partial separation of powers,12 the principle that each branch acts as a check and balance for the other two still holds. In Chan Hiang Leng Colin v. Public Prosecutor,13 Chief Justice Yong commented that the court’s responsibility was to ensure that “the provisions of the Constitution are observed… and (it) has a duty to declare invalid any exercise of power, legislative and executive, which exceeds the limits of the power conferred by the Constitution, or which contravenes any prohibition which the Constitution provides.”14 The ultra vires doctrine, with its roots in the United States Supreme Court case of

7

Kevin Tan, The Singapore Legal System (2nd edn reprint Singapore University Press, Singapore 2003) 78

Furthermore, Part IV of the Constitution gives constitutional status to a list of fundamental liberties. Any decision that might infringe on these fundamental liberties is thus subject to judicial review.19 These include, but are not exhaustive of: personal liberty,20 protection against retrospective criminal laws,21 equality,22 freedom of speech, assembly and associations, freedom of religion,23 and education rights.24 While some of these rights are uncontroversial, such as the right to education, other rights have been raised before the courts and are thus subject to judicial interpretation. III. DEFERENCE TO PUBLIC BRANCHES Ultra Vires With the rise of hybrid public-private bodies, the courts have refined the scope of the ultra vires principle in order to better apply it to the practical intricacies of the situation. Instead of looking to the source of the power, the courts now pay more attention to the particular decision made, and instead determine if the body was acting on public powers when making that decision. Arguably, this could restrict the scope of the ultra vires theory. In Public Service Commission v. Lai Swee Lin Linda,25 while it was not disputed that courts should look to the source of power exercised by the body, the Court of Appeal explained that this was not always decisive. Instead, “much depends on the circumstance”.26 In this case, the termination of a legal officer’s employment after an extended probationary period was held to be contractual in nature, rather than a matter of public law. As the body was

9

15 16 17 18

10

19

8

525 [86]

Chng Suan Tze v. Minister for Home Affairs [1988] 2 SLR(R)

Chan Sek Keong, ‘Judicial Review – From Angst to Empathy’ (2010) 22 Sing Ac LJ 469 [472] Thio Li-Ann, ‘Lex Rex or Rex Lex? Competing Conceptions of the Rule of Law in Singapore’ [2002] 20 UCLA Pacific Basin Law Journal 1

Chan Hiang Leng Colin v. Public Prosecutior [1994] 3SLR(R)

14

(n 13) [50]

26

12

Associate Professor Gerard Carney ,‘Separation of Powers in the Westminster System’ <http://www.parliament.qld.gov.au/aspg/ papers/930913.pdf> accessed 25 July 2016 209, 231

ACC v. CIT [2010] 1 SLR 273 [21] Attorney-General v. Fulham Corporation [1921] 1 Ch 440

Chen Zhida, ‘The Nature of Judicial Review in Singapore’ (2013) 31 SLR 79

13

Mohammad Faizal bin Sabtu v. Public Prosecutor [2012] 4 SLR 947, 958 [14]

Marbury v. Madison 5 U.S. 137 (1803)

Wong Yip Pui v. Housing and Development Board [19831984] SLR(R) 739

20 21 22 23 24 25

11

24

Marbury v. Madison,15 is “concerned not with the merits of a decision but the process by which the decision has been made.”16 In practice, this means that each body is conferred powers by Parliament, and can only act within the scope of those powers or “reasonably incidental” to them.17 This was seen implicitly in the High Court case of Wong Yip Pui v. Housing and Development Board.18 In this case, the court had ruled that the plaintiff was not an authorised occupier based on the definition in Section 2(1) of the Act in question, and thus the HDB’s action was illegal.

Constitution of Singapore, Article 9(1) (n 19) Article 11 (n 19) Article 12 (n 19) Article 15 (n 19) Article 16

Public Service Commission v. Lai Swee Lin Linda [2001] 1 SLR(R) 133 (n 24) [44]


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