Judicial Review in Singapore: What is It and How to Apply
If a court in Singapore orders a judgment against you, you may wish to appeal against the judgment by bringing the decision up to a higher court to have the merits of that decision re-examined.
However, if instead you have an issue with how the decision was made, such as the decision being tainted by bias or even whether the judge had the power to make that decision in the first place, you may wish to consider a judicial review instead.
In fact, judicial review is not limited to court decisions, but extends to decisions by individuals and bodies performing a public function.
Read on to find out:
What is Judicial Review and is It the Same as an Appeal?
In Singapore, judicial review is the process by which the High Court exercises its supervisory jurisdiction over some individual or body that performs public functions and duties (i.e. a public body).
This usually entails overturning the decisions of the public body. Such decisions may not only include tribunal decisions (like a disciplinary tribunal) or decisions to prosecute, but also those pertaining to subsidiary legislation and policies.
Unlike an appeal, where a lower court’s decision is overturned due to a perceived mistake in the application of the law or evidence, a judicial review serves to overturn decisions made by public bodies that are:
- Illegal – The public body did not have the power to make the decision in the first place;
- Irrational/“Wednesbury unreasonable” – The decision was so irrational that no reasonable person could have made it; or
- Procedurally improper – The decision constituted:
- A breach of procedural or substantive legitimate expectations (i.e. the public body did not act according to what it had represented to you procedurally, or in terms of a substantive benefit);
- A failure to observe statutory procedure (i.e. the procedure laid out in legislation); or
- A breach of natural justice (i.e. the decision was tainted by bias or failure to give all parties a fair trial).
Depending on the circumstances, particularly when it comes to tribunal decisions, it may be necessary for the public body to remake its decision. For example, if a court or tribunal decision has been quashed for bias, a re-trial with a different judge/tribunal presiding may be ordered because the previous decision is no longer in force.
However, it must be noted that the retrial could ultimately lead to the exact same result as the previously quashed one. Keeping with the example above, while the new judge/tribunal in the re-trial may not be biased, it is possible that his/its examination of the evidence may lead to the same conclusions of fact and law as the previous (biased) judge/tribunal.
This is in contrast to an appeal, where a successful appeal usually entails a different substantive result. The reason for this is because an appeal succeeds or fails based on the merits of the decision rather than how the decision was made.
What are the Possible Remedies in Judicial Review?
The main types of orders that may be made upon a successful judicial review application are as follows:
- Mandatory Order – Instructs the public authority to perform a public duty.
- Prohibiting Order – Forbids the public authority from performing an act.
- Quashing Order – Sets aside or cancels a decision or piece of subsidiary legislation.
- Order for Review of Detention – Directs someone holding a person in detention to produce the detainee before the court so that the legality of the detention can be established.
Which Decisions are Susceptible to Judicial Review in Singapore?
For a decision to be susceptible to judicial review, the decision in question must be both “justiciable”, meaning the court is allowed to decide on it, and “amenable” to judicial review, in that it contains a public element.
Matters of national security are generally not justiciable (i.e. subject to trial). This is to allow the government to take swift action when necessary. The same is true of matters of high policy or political questions, such as decisions to dissolve Parliament, the deployment of armed forces, and boundary disputes.
For a decision to be amenable to judicial review, it must contain some public element. This will be the case if it passes either the “source test” or the “nature test”.
The “source test” entails determining whether the decision-making body’s power to make the decision came from a legal source, such as a statute or subsidiary legislation. If so, the decision would be in exercise of a statutory power and would pass the source test.
Thus, the decision would be amenable to judicial review in the absence of compelling reasons to the contrary. Such compelling reasons would include cases where there is a lack of any public element to the relevant decision-making power (see the nature test below). Examples of such cases include the powers conferred on companies and trustees by the Companies Act and Trustees Act respectively.
However, it must be noted that when a statutory board makes a decision, it is not necessarily in exercise of statutory powers. For example, in the case of Public Service Commission v Lai Swee Lin Linda, the decisions that were being challenged stemmed from the terms of a Civil Service Instructions Manual, which had been incorporated into Ms Lai’s employment contract.
The terms of the Civil Service Instructions Manual did not constitute a statute and were merely administrative guidelines of the civil service. Hence, as the powers exercised by the various statutory bodies involved in that case did not come from any statute or subsidiary legislation, and the source of power was the contract, the decisions being challenged accordingly did not pass the source test to be subject to judicial review.
The “nature test” entails determining whether the decision involved an exercise of public law functions. If so, it is susceptible to judicial review even if the source of the decision-making body’s power is not from a statute (i.e. even if the decision does not pass the source test).
This means that even non-statutory bodies may perform public functions. Such public functions may include overseeing takeovers of listed public companies, and granting licences to participate in markets held on publicly owned land to which the public had access. The exercise of such functions would be applicable to judicial review even where such powers are exercised by private bodies (e.g. private companies) and do not stem from some statutory source.
This will take into account several factors, including:
- The nature of the function.
- The extent to which there is any statutory recognition or underpinning of the body or function in question.
- The extent to which the body has been interwoven into a system of governmental regulation.
These factors were applied in the case of Yeap Wai Kong v Singapore Exchange Securities Trading Ltd with respect to a decision by the Singapore Exchange Securities Trading Ltd. (SGX-ST) to reprimand a director of a company on the Singapore Exchange.
In the end, although the SGX-ST was not a statutory board (meaning its decisions would not pass the source test), SGX-ST was held to be performing a public function. This was due to the legislative and regulatory matrix of the Singapore securities market, the statutory underpinning of the reprimand power (e.g. through the Securities and Futures Act) and the nature of the reprimand function. Hence, its exercise of its reprimand function was susceptible to judicial review under the nature test.
The court may also consider whether the decision-maker’s exercise of power was something a private individual would be capable of doing. For example, purchasing a lease of land from the State is not a public law function as it is something any private landlord can do. This is so even if the decisions as to who to lease the land to may be based on public interest considerations such as “quality of jobs generated” and “value add to the GDP of Singapore”, since private landowners may also take into account such non-commercial considerations when deciding whether to lease their land.
Which Decisions are Exempted From Judicial Review in Singapore?
In addition to the general principles on amenability and justiciability, certain statutes have “ouster clauses”, which purport to exempt decisions made under them from judicial review.
Under section 8B of the Internal Security Act (ISA), for example, there can be no judicial review of any act or decision made by the President or the Minister for Home Affairs under the ISA, except for any question relating to the compliance with any procedural requirement of the ISA.
Other examples where such ouster clauses apply include the Charities Act with respect to fund-raising appeals, as well as decisions of the Minister for Manpower and Controller of Work Passes relating to issuing, suspending and revoking work passes under the Employment of Foreign Manpower Act.
It should be noted, however, that such ouster clauses are not always upheld in full by the courts. For example, in the case of Borissik Svetlana v Urban Redevelopment Authority, it was held that even in the presence of an ouster clause stating that “the decision of the Minister shall be final and shall not be challenged or questioned in any court”, the Minister of National Development would still be required to accord a fair hearing. This holding implied that the ouster clause would not be effective in ousting the court’s jurisdiction to review a decision on the grounds of bias.
Who Can Apply for Judicial Review?
Only someone with a sufficient interest can apply for judicial review. The relevant test is as follows:
- The applicant must have a “real interest” in bringing the action (as opposed to being a “mere busybody”, unless there is an egregious breach of the law involved);
- For example, if a tax authority has assessed and agreed not to collect taxes from homeless people, a group of affluent people could be considered busybodies in attempting to bring a judicial review to quash the tax authority’s decision.
- However, if the tax authority has agreed not to assess and collect taxes from some class of people (in breach of its statutory duty) due to some grossly improper pressure or motive, judicial review might be available to other taxpayers. For example, this may be the case if, hypothetically speaking, the tax authorities decide not to collect taxes from corrupt businessmen who have bribed key decision-makers in the tax authority.
- There must be a “real controversy” between the parties to the action for the court to resolve as opposed to hypothetical issues. This is unless there is a good reason in the public interest for doing so, e.g. if a declaration will be helpful to the parties or the public; and
- For example, in Tan Eng Hong v AG (a constitutional challenge to section 377A of the Penal Code, to which the same test applies), the real controversy was met due to the applicant’s arrest, investigation, detention and charge under section 377A, as well as the real and credible threat of prosecution under that law.
- It should be noted that there may be an overlap between the “real controversy” and “real interest” requirements, in that a real controversy arises if the applicant has a real interest in raising the application and there must be someone with a true interest to oppose the application.
- The judicial review must relate to a violated right that is personal to the applicant. This can be:
- A private right (one held and vindicated by a private individual in litigation); or
- A public right (one shared in common with other citizens) where the applicant had suffered special damage, or possessed a special interest in the subject matter of the action, that distinguishes his claim from those of other potential litigants in the same class (even though he does not need to show that he is the only person affected).
- The special interest requirement would be fulfilled only if the applicant is likely to gain some advantage if the action succeeds, or suffer some disadvantage otherwise. The interest must go beyond a mere intellectual or emotional concern.
- An example of a public right is the right to have an open space kept open and free from buildings for the public’s enjoyment.
Exhaustion of remedies
You should have also exhausted all your possible alternative remedies before you can invoke the jurisdiction of the court for judicial review, save in the most exceptional circumstances. If there is an appeal procedure available in your case, you will not be able to apply for judicial review.
A judicial review also will not be ordered if it is made prematurely. For example, with respect to disciplinary tribunals, the court almost always views challenges made before a tribunal has pronounced a final determination on the matter to be premature.
However, exceptions are sometimes made to the prematurity concept, such as where:
- A decision made before the final outcome has a substantial adverse effect on the applicant.
- There are cost savings for not exposing the applicant to the full decision-making process.
- It would be unfair to allow the process to even begin.
What Grounds Must be Established for the Court to Order a Judicial Review?
For the court to order a judicial review, the relevant decision or subsidiary legislation must be affected by illegality, irrationality or procedural impropriety.
Essentially, a decision will be considered illegal if the decision-maker did not have the power that it purported to have, meaning there was no basis in law for the impugned action.
While this is the simplest form of illegality, there are other grounds on which a decision may be considered illegal in the context of judicial review, including:
- Errors as to precedent fact – The existence of an objective fact that is required for the public body to exercise its power had not been established.
- Take the example of an immigration officer who is entitled by law to order the detention and removal of a person from a country only if that person is an illegal entrant. An order to detain and remove a person whom the court determines to not be an illegal entrant would be illegal, even if the immigration officer had reasonably believed him to be an illegal entrant.
- No evidence – If a decision is unsupported by any evidence, or the evidence taken as a whole is not reasonably capable of supporting the decision, it cannot stand.
- Error of material fact – The court may intervene if an error of fact leads to unfairness in the decision-maker’s reasoning. For this to happen, the decision-maker must have obviously misread the evidence, thereby coming to a conclusion that was contrary to the evidence or plainly wrong.
- Relevant/Irrelevant considerations – A decision will not be allowed to stand if the public body failed to take into account relevant considerations, or took into account irrelevant considerations, when making that decision.
- Improper purpose – If a statute grants a particular power for a certain purpose, it is unlawful for the decision-maker to exercise it for another purpose.
- Fettering discretion – Even if the decision-maker was allowed the discretion to formulate policies and guidelines, it cannot fetter its discretion (i.e. limit the possible decisions it can make) by blindly applying a guideline. It must be prepared to hear out individual cases and deal with exceptional cases. A decision may be considered illegal if it was decided with reference to such an inflexible policy.
Irrationality / Wednesbury unreasonableness
A decision will be considered irrational if it is so outrageous in its defiance of logic or of accepted moral standards, that no sensible person could have arrived at it. One example of such a decision would be a decision to dismiss a teacher with red hair simply because she has red hair.
This ground of irrationality is also known as “Wednesbury” unreasonableness, because this rule was laid down in the case of Associated Provincial Picture Houses v Wednesbury Corporation.
The last ground for judicial review is procedural impropriety, which encompasses various heads:
- Breach of legitimate expectations – Even if a person is not legally entitled to a benefit or privilege, the court will protect the person’s expectation to receive that benefit or privilege if it is a legitimate or reasonable expectation. Such an expectation may arise either from an express promise given on behalf of a public authority, or from the existence of a regular practice that the claimant can reasonably expect to continue.
- Failure to observe statutory procedural requirements for the exercise of its powers.
- Breach of natural justice (e.g. tainted by bias or failure to give all parties a fair hearing).
How Do You Commence Judicial Review Proceedings?
The general procedure for bringing a judicial review in Singapore is split into two stages:
- The application for permission (previously known as an “application for leave”)
- The substantive application
With respect to the first stage, the application must be made by an originating application without notice and must be supported by:
- A statement setting out the name and description of the applicant, the relief sought and the grounds on which it is sought, and
- An affidavit, to be filed when the application is made, verifying the facts relied on.
Three conditions must also be satisfied before a court will grant permission for you to commence judicial review, some of which have already been discussed above:
- The subject matter of the complaint has to be susceptible to judicial review (e.g. it must be amenable to judicial review and justiciable, and the judicial review cannot be subject to an ouster clause);
- The applicant has to have sufficient interest in the matter; and
- The applicant has to have a plausible case on the evidence.
If permission is granted, the applicant may then file an application known as a “summons” to seek the relevant “prerogative order” or remedy (i.e. a Mandatory order, Prohibiting Order or Quashing Order). This application must be filed within 14 days, or else the permission granted by the court will lapse.
The applicant will need to serve the summons together with the originating application, the statement and affidavit (from the first stage), as well as the order granting permission, on all the directly affected parties.
There will then be a hearing for the substantive application, at which the applicant will be able to rely only on the grounds and relief set out in his statement (from the first stage). If the applicant wishes to rely on anything more than what is in the statement, he/she will need to ask the court for permission to amend the statement.
Can a Judicial Review be Appealed?
A decision made by a judge to order or reject a judicial review is appealable.
Judicial review is a powerful tool if you have been affected by a decision made by a public body in Singapore against you that is tainted by illegality, irrationality or procedural impropriety (e.g. bias). This decision could be a tribunal decision, a policy or even a decision to prosecute you that affects you personally (or generally more than others). It allows you to reverse these decisions, prohibit further such decisions from being made, or even compel a public body to make a decision.
However, it must be noted that judicial review is available only after exhausting other alternative remedies (such as an appeal, where available), and that it may be ousted by statutes in certain circumstances. Unlike an appeal, a successful judicial review application might also not lead to a different substantive result.
To understand whether it makes sense to apply for a judicial review in your particular circumstances, you may wish to speak with a civil litigation lawyer to explore your options.
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