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    07:29 PM Lee Zhe Xu (LL.B (NUS), LL.M (Boston))

    When is an Ouster Clause Ousted?

        

    Introduction

    An ouster clause is a statutory provision which prima facie prohibits judicial review of the exercise of the discretionary powers of the Executive to which they relate: Per Ah Seng Robin v Housing and Development Board [2016] 1 SLR 1020 (“Robin Per”) at [63]. The issue of whether and to what extent an ouster clause can effectively oust judicial review of executive discretion has not been conclusively decided by the Singapore courts. However, the High Court was recently given the opportunity in Nagaenthran a/l K Dharmalingam v Attorney-General [2018] SGHC 112 (“Nagaenthran”) to consider this question in full, and decided to take up this opportunity.  

     

    The decision in Nagaenthran

     

    Nagaenthran involved a challenge to the effectiveness of Section 33B(4) of the Misuse of Drugs Act (the “provision”), which provides that the Public Prosecutor’s determination of whether any person has substantively assisted the Central Narcotics Bureau in disrupting drug trafficking activities may only be reviewed on the grounds that “the determination was done in bad faith or with malice”. The provision is a “partial” ouster clause because it narrowly circumscribes the ambit of judicial review of the Public Prosecutor’s determination in this regard, and does not on its face permit judicial review on the traditional grounds of illegality, irrationality, and procedural impropriety.  

     

    The Applicant in Nagaenthran challenged the effectiveness of this provision using the following arguments.

     

    • First, he argued (at [75]) that the provision is inconsistent with Article 93 of the Constitution, which vests the judicial power of Singapore only “in a Supreme Court and in such subordinate courts as may be provided by any written law for the time being in force”. This had been an “academic” argument posited by former Chief Justice Chan Sek Keong in an extrajudicial lecture in 2010: Chan Sek Keong, “Judicial Review – From Angst to Empathy” (2010) 22 SAcLJ 469, 476.
    • Second, he argued (at [76]-[77]) that because the provision curtails the power of the judiciary to review the executive’s exercise of discretion, it thereby offends (i) the principle of separation of powers and (ii) the principle of legality, i.e. that courts should be able to review the exercise of discretionary power.
    • Third, drawing from the seminal House of Lords decision of Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, he argued (at [101]) that insofar as the Public Prosecutor’s decision is tainted by an error of law, it amounts to a non-decision or a nullity that cannot be saved by an ouster clause.

     

    Chan Seng Onn J dismissed the Applicant’s challenge and found that the provision effectively limited the scope of judicial review for the following reasons:

    • The enactment of an ouster clause in respect of a non-justiciable determination would not infringe Article 93. While the court in principle has jurisdiction to adjudicate on all legal disputes between the State and the people, there are ultimately some legal disputes between the State and the people that should properly be excluded from the province of judicial power (at [84]). These are those disputes which are inherently non-justiciable, i.e. disputes hinging on “a holistic inquiry…premised on a panoply of extra-legal factors”, which would include the Public Prosecutor’s determination under the provision (at [89], [94]).
    • The provision does not contravene the principle of separation of powers, but is in fact an “exemplar” of the principle, because the judiciary ought to defer to the intention of the legislature in the vesting of certain powers in the executive and respect the relative institutional competence of the executive in respect of decisions that concern issues that judges are ill-equipped to adjudicate (at [88], [97]). 
    • The provision does not contravene the principle of legality (i.e. that all discretionary power has legal limits) because the Public Prosecutor does not have unfettered discretion to act; Parliament has imposed “appropriate limits” by allowing the Public Prosecutor’s determination to be reviewed on grounds of bad faith or malice (at [97]-[98]).
    • While case law in Singapore does suggest that ouster clauses cannot prevent judicial review in respect of jurisdictional errors of law (at [117]), Chan J refrained from deciding whether all errors of law are in fact jurisdictional errors of law (at [119]). However, he did observe that such a conclusion “would not appear to be aligned with the “green-light” approach towards administrative law, which is presently the most accurate reflection of the sociopolitical attitude in the existing Singapore milieu” (at [123]). Nonetheless, even on the assumption that all errors of law are jurisdictional errors of law, the Applicant failed to make out any prima facie error of law on the facts (at [125]-[145]).

     

    Comments on the decision

     

    Ouster clauses and Article 93

    Several observations can be made in relation to Chan J’s treatment of the relationship between Article 93 and ouster clauses. Most fundamentally, the court arguably sidestepped the fundamental question underlying the relationship between Article 93 and ouster clauses, i.e. whether Parliament has the power to immunize aspects of executive power that are otherwise judicially reviewable. This is because an ouster clause is arguably superfluous if it pertains to a power that is already inherently non-justiciable. Accordingly, by holding that the enactment of an ouster clause in respect of a non-justiciable determination would not infringe Article 93, the decision merely reaffirms the doctrine of inherent non-justiciability, i.e. that there exists “provinces of executive decision-making that are, and should be, immune from judicial review” depending on “the subject matter that is in question”: Lee Hsien Loong v Review Publishing Co Ltd [2007] 2 SLR(R) 453 (“Review Publishing”) at [95], [98]. This much is uncontroversial. But what if Parliament enacts an ouster clause precluding judicial review of the Minister’s power to detain individuals under Section 30 of the Criminal Law (Temporary Provisions) Act, a power that has been incontrovertibly established to be justiciable? While Nagaenthran may be read to suggest that such an ouster clause would be ousted by Article 93, it does not expressly say so. Nor does the decision provide guidance as to how an ouster clause may purport to legitimately narrow the scope of judicial review in these circumstances.

     

    It is also respectfully submitted the court’s rationale for holding that the Public Prosecutor’s discretion under the provision is non-justiciable falls short in two ways. First, the court held that such discretion is non-justiciable as “the courts are ill-equipped to consider whether an offender has rendered substantive assistance in disrupting drug trafficking activities, given that such a determination involves a holistic inquiry premised on a panoply of extra-legal factors” (see [94]). However, whether the courts are ill-equipped to decide this question is conceptually distinct from whether the courts are able to review this primary decision. Indeed, it seems that the Court of Appeal decisions the court cited in support of the above proposition (see [94]-[95]) had considered it in the context of whether the courts should decide the question. Most, if not all, executive decisions do involve a “holistic inquiry” and consideration of “extra-legal” factors. Furthermore, the fact that (i) the provision here does contemplate a limited form of judicial review and (ii) the court did not appear to have much difficulty applying the traditional grounds of judicial review later in the judgment (see [125]-[145]) casts further doubt on the conclusion that this discretion is “intrinsically incapable of submission to adjudication”.

     

    Second, in determining when a power is non-justiciable, the court referred to the decision in Review Publishing, which laid out some principles in this regard. However, the court did not seem to put emphasis on the parts of the decision in Review Publishing that stressed that a nuanced approach should be taken. For instance, the court in Review Publishing (at [98]) commented that “the correct approach is not to assume a highly rigid and categorical approach to deciding which cases are not justiciable” and that “even if, prima facie, a case comes within what appears to be a non-justiciable area, the courts may intervene if, on closer scrutiny, it becomes clear that it does not”. Using this approach, instead of simply holding that the Public Prosecutor’s discretion under the provision is outright non-justiciable, the court could perhaps have carefully considered which specific grounds of review may be available.

     

    Ouster clauses and the principle of legality

    By holding that the provision does not offend the principle of legality because it allows for judicial review on the narrow grounds of bad faith and malice, Nagaenthran continues the trend of the Singapore courts narrowly construing this principle and limiting its impact on the available scope and standard of review (see Jaclyn Neo, “All Power has Legal Limits: The Principle of Legality as a Constitutional Principle of Judicial Review” (2017) 29 SAcLJ 667 (“Neo”) at [13]). In other words, the tenor of prevailing local jurisprudence suggests that the principle of legality will be satisfied as long as judicial review is technically available, regardless of the narrowness of the grounds available.  

     

    In addition, Nagaenthran did not fully explain why it found the availability of judicial review on the grounds of bad faith and malice to be a “reasonable balance” (see [98]). For one, the decision did not clearly state the competing considerations involved in determining this “reasonable balance”, although it may be inferred that two key considerations may be the principle of legality and the presumption of legality (i.e. that the acts of high officials should be accorded a presumption of regularity). As this area of the law remains rather undeveloped, it is regrettable that the court did not take the opportunity to expressly consider how the appropriate balance may be struck between these two competing principles (see Neo at [47]).

     

    In particular, the court could have considered whether the status of the power in question affects the appropriate balance to be struck. It may be observed that other powers which the Court of Appeal has declared to be reviewable on similar circumscribed grounds include the prosecutorial power (see Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR(R) 239 at [149]) and the clemency power (see Yong Vui Kong v Attorney-General [2011] 2 SLR 1189 at [82]). But these powers are constitutional powers, where it is arguable that the degree of deference granted by the courts may be justifiably higher. In contrast, the Public Prosecutor’s discretion in this case is only a statutory power. Indeed, the Court of Appeal in Ramalingam Ravindran v Attorney-General [2012] 2 SLR 49 did suggest (at [47]) that the presumption of legality “will certainly be stronger in relation to the acts of an official who holds a constitutional office”, which does suggest that the status or source of the power would be an important factor in determining how the appropriate balance should be struck.  

     

    Ouster clauses and errors of law 

    By relying on the past High Court decisions of Re Yee Yut Ee [1977–1978] SLR(R) 490 and Stansfield Business International Pte Ltd v Minister for Manpower [1999] 2 SLR(R) 866, the decision in Nagaenthran clarifies that ouster clauses will not preclude review of jurisdictional errors of law. This clarification is welcome, given that a previous High Court decision of Cheong Chun Yin v Attorney-General [2014] 3 SLR 1141 had suggested that the provision does not permit of a separate ground of judicial review on the basis of a “jurisdictional error of law” (at [31]).

     

    However, the court’s treatment of the distinction between jurisdictional and non-jurisdictional errors of law raises several questions. For one, the court suggested (at [108]) that the precedent fact principle of review was the only ground raised by the Applicant which involved a jurisdictional error of law. On the other hand, in opining the Public Prosecutor’s decision under the provision should not be allowed to stand if he had considered irrelevant considerations or had ignored relevant ones (at [116]), the court also seems to suggest that this involves a jurisdictional error. This only underscores the difficulty of deciding when an error is jurisdictional or not.

     

    In addition, one may question the court’s observation that the proposition that all errors of law are jurisdictional errors of law may be inconsistent with the prevailing “green-light” approach. An examination of the Court of Appeal’s decision in Jeyaretnam Kenneth Andrew v Attorney-General [2013] 1 SLR 345 (“Jeyaretnam Kenneth”), which had judicially endorsed this “green-light” approach, reveals that the crux of this approach is not manifest deference to the government. Instead, this approach only requires that judicial review not be decoupled from the fundamental precepts of adversarial litigation (see Jeyaretnam Kenneth at [47]-[48]), i.e. that the rules of standing should not be unduly loosened and that judicial review should focus on vindicating individual rights, not matters of public policy (see Jeyaretnam Kenneth at [55]-[56]). It does not require that the courts continue to hold back even when some irregularity in the decision-making process has been proven, which is what Nagaenthran appears to suggest. In fact, it is even arguable that accepting that all errors of law are jurisdictional errors may be more consistent with an approach focused on the vindication of individual rights. Indeed, as expressed by the Court of Appeal, it would be “unthinkable that citizens would have no recourse for bringing claims against unlawful conduct by public bodies” (Jeyaretnam Kenneth at [60]).

     

    Non-conventional ouster clauses

    Finally, while this was not canvassed in the decision, it remains to be seen whether successful challenges can be made against “non-conventional” ouster clauses. These clauses do not purport to oust the right to judicial review, but work to ostensibly curtail the power of the judiciary in another way. One possible example is Section 14 of the Government Proceedings Act (“GPA”). Section 14 of the GPA states, inter alia, that no action in tort may lie against the Government or a member of the armed forces if (i) the plaintiff (as a member of the armed forces) was on duty at the time of the incident, (ii) the defendant’s act or omission was not connected with the execution of his duties as a member of the forces, and (iii) the Minister responsible for finance certifies that his suffering that thing has been or will be treated as attributable to service for the purposes of entitlement to an award under written law. Given that the judicial power encompasses deciding “a controversy either between a State and one or more of its subjects, or between two or more subjects of a State” (see Mohammad Faizal bin Sabtu v Public Prosecutor [2012] 4 SLR 947 at [27]), it may well be arguable that Section 14 ousts the power of the judiciary and is therefore inconsistent with Article 93, as it is the Minister who effectively disposes of the dispute between the parties in this context. Furthermore, it cannot be said that the subject matter in question is non-justiciable, given that the resolution of tortious disputes clearly falls within the court’s institutional competence.

     

    Conclusion

     

    The decision in Nagaenthran represents a welcome first step in the development of local jurisprudence relating to the effectiveness of ouster clauses. Given the constitutional difficulties that ouster clauses face and the fact that they have often been viewed with circumspection (Robin Per at [64]), this author submits that it may be conceptually neater to disregard all ouster clauses and instead focus on calibrating the scope and intensity of review in accordance with the subject matter in question.  Nonetheless, given that ouster clauses implicate a multitude of underlying tensions within the realms of constitutional and administrative law, there are no easy answers. However, what is clear is that Nagaenthran will certainly not be the last word on this subject.

    * This blog entry may be cited as Lee Zhe Xu, “When is an Ouster Clause Ousted?”  (6 July 2018) (http://www.singaporelawblog.sg/blog/article/214)

    ** A PDF version of this entry may be downloaded here

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