not exercising statutory powers when making the particular decision, the case could not be judicially reviewed. This was affirmed in UDL Marine (Singapore) Pte Ltd v. Jurong Town Corp,27 where the court again examined the source of power of the particular transaction, rather than the body involved. Thus, even though a public body may be acting in a way that seems to exceed its powers, if that particular decision is not made on the basis of its public powers, it is not deemed to be ultra vires. This arguably limits the scope of the ultra vires doctrine. Yet, wider implications of this principle must be considered. In Linda Lai, the court referred to the United Kingdom case of Datafin.28 In this case, the Court was willing to subject the Panel, a self-regulating body wielding immense de facto power, to judicial review. While some may use this to argue that judicial review may be extended in certain situations where a private body is performing a public function as well, it must be acknowledged that this principle has not been made explicit in Singapore yet. Thio Li-Ann argues that this approach - where the courts not only look at whether a specific body performs a public law function, but also to the specific decision in question and its consequences – cannot be justified in terms of the ultra vires theory. Instead, its “justification is better sought in an acknowledgement of the independent constitutional role of the courts to prevent the abuse of public power, whether de jure or de facto, a shift from the control of conferred powers, to the need to control power and protect the interests of individuals within the legal order”.29 This may thus arguably be a better and more effective method of fulfilling the constitutional role of providing a framework for governmental powers. Presumption of Constitutionality With regards to holding the executive accountable, the court often gives the executive wide discretionary powers. Although clearly stating that this discretionary power cannot override a fundamental liberty enshrined in the Constitution,30 it has to first be shown that this fundamental liberty was breached. The Supreme Court holds strongly to the presumption of constitutionality – when seeking judicial review, the burden of proof is on the claimant to show that the decision or Act is unconstitutional. This burden is often very difficult to discharge, as “it will usually be necessary for the person challenging the law to adduce some material or factual evidence to show that it was enacted arbitrarily or had operated arbitrarily”.31 For example, in Ramalingam
27
SGHC 45
UDL Marine (Singapore) Pte Ltd v. Jurong Town Corp [2011]
28
R v. Panel on Take-overs and Mergers, ex parte Datafin plc [1987] QB 815
29
Thio Li-Ann, ‘The Theory and Practice of Judicial Review of Administrative Action in Singapore: Trends and Perspectives’ SAL Conference 2011 – Singapore Law Developments (2006-2010)
30
Ramalingam Ravinthran v. Attorney-General [2012] SGCA 2
31
Public Prosecutor v. Taw Cheng Kong [1998] 2 SLR(R) 489
[41]
Ravinthran v. AG, the Court gave effect to the constitutional standing of the office of Attorney-General, ruling that “given the constitutional status of the Attorney-General, the courts should presume that he acts in the public interest as the Public Prosecutor, and that he acts in accordance with the law when exercising his prosecutorial power.”32 Thus, it may be argued that the Court is hesitant to adjudicate on the legality of executive decisions and legislative Acts. IV. GENERAL CONSTITUTIONAL APPROACH Dworkin argues that there are two ways of constitutional interpretation: the moral reading and orginalism. The moral reading of a constitution gives effect to what the framers intended to say, while originalism insists that the constitution should be read in accordance with what the framers expected their language to do. Traditionally, the Singapore courts have adopted the latter approach, taking a more “literal, amoral” interpretation of the Constitution,33 often refraining from concluding that public policy infringes on fundamental rights. This could be seen in the case of Jabar v. PP, where the Court of Appeal, adopting a positivist approach, stated that as long as the law was “validly passed by Parliament», “the court is not concerned with whether it is also fair, just as reasonable as well».34 The courts have also sought to construe these rights narrowly. In Rajeevan Edakalavan,35 Yong CJ refused to extend the Article 9(3) right to legal counsel to a right to be informed of one’s constitutional right to counsel. Similarly, in the case of Lim Meng Suang, the court held that the Article 9(1) right to liberty “refers only to the personal liberty of a person from unlawful incarceration or detention”, does not extend to “a limited right to privacy and personal autonomy allowing a person to enjoy and express affection and love towards another human being.”36 However, there are suggestions that the judiciary might be taking a more purposive interpretation in some cases. In Yong Vui Kong,37 the Court of Appeal said that the court would not qualify as law “legislation directed at securing the conviction of particular known individuals… or legislation of so absurd or arbitrary a nature that it could not possibly have been contemplated by our constitutional framers as being “law” when they crafted the constitutional provisions protecting fundamental liberties”. Yet, Dr Jack Lee says that “it is likely that this principle will only be applied in exceptional circumstances”,38 and thus cannot be indicative
32 33
(n 30) [46]
34 35 36
Jabar v. PP [1995] 1 SLR 617
37 38
Yong Vui Kong v. Public Prosecutor [2010] SGCA 20
Thio Li-Ann and Kevin Tan, Evolution of a Revolution: Forty Years of the Singapore Constitution (Routledge-Cavendish, Oxford 2009) Rajeevan Edakalavan v. Public Prosecutor [1998] 1SLR(R) 10
Lim Meng Suang and another v. Attorney-General and another appeal and another matter[2014] SGCA 53 Jack Tsen-Ta Lee ‘Protecting Human Rights: The Approach
25