I was randomly looking through the Women's Charter when my conscience was deeply offended by section 166, which reads: "An appeal shall lie from any order made by the Director under this Part to the Minister whose decision shall be final and shall not be questioned in any court."
Does this sound morally objectionable to you? My very green and unlearned instinct still believed that judicial review should always be available as a last resort, such that the laws passed by the legislature and the actions of the executive are always subject to the judiciary's independent inquiry. I was naturally displeased to find that Parliament could simply gift the Minister, a member of the executive, conclusive powers of discretion. Parliament could then theoretically pass entire statutes that gave the Prime Minister the final say in all decisions regarding the statute. To a party with a supermajority in the legislature this might seem an attractive option, especially if the judiciary subscribes to a different political ideal.
Intrigued, I read a bit more into this area of administrative law and discovered myself to be very much an ignorant sophomore. These clauses are known as "ouster clauses" and appear in many Acts in Singapore, including section 60(3) of the Education Act, section 13(2) of the Free Trade Zones Act, section 12(3) of the Housing Developers (Control and Licensing) Act, and section 25(13) of the Residential Property Act.
English law has seen much debate over their validity. The seminal case of
Anisminic v Foreign Compensation Commission found a way to question one such administrative decision by finding that the decision of the commission given seemingly unquestionable authority was not a "determination", which was the word used in the statute. This decision is, according to Endicott, based on questionable authority. The Singapore position is nevertheless similar, with cases generally stating that ouster clauses only exclude review of errors within jurisdiction but do not preclude review of nullities. I am certain we will learn more of this in the public law course.
But for now, how is this relevant? We see similar evasive techniques being employed by the Supreme Court in reviewing decisions of the Strata Titles Board in the raft of cases that has reached it in recent years. The High Court may only review points of law decided by the Board and not points of fact. The Court of Appeal held in
Ng Eng Ghee v Mamata Kapildev (the first one) that
ex facie errors of law may be reviewed. These include errors on issues of evidence such as admissibility and burden of proof. It can be observed that the line between points of law and fact becomes very fine.
The Court of Appeal was of the view that broadening the right of appeal on points of law was "beneficial" and would "assist the integration of the tribunal system with the general machinery of justice". This is if one believes that judicial review is essential to the rule of law (another hot topic these days). Endicott suggests that judicial review is not a natural consequence of the rule of law. Parliament is sovereign, and Parliament should be able to delegate decision making as it pleases within the confines of the Constitution. Decision making powers are usually delegated where specialised technical expertise is desirable and to reduce the burden on the courts. There is no reason why courts are better placed than tribunals or the executive in making certain specialised decisions. Broadening the right of appeal would also defeat the purpose of lightening the courts' workload.
The opposing argument I can think of regards independence. The judiciary should be independent, whereas the executive is entitled to pursue its own political gains. Is this acceptable within a designated jurisdiction? I don't know.
