June 27

Administrative Law Digest

This post contains a roundup of recent developments (in and out of courts) and scholarship in the area of administrative law around the common law world. To submit content for our next update, please email us at alawblogorg@gmail.com.

 

Judicial Developments in Administrative Law

1. A Malaysian High Court has ruled that the State Legislative Assembly’s (DUN) decision to disqualify an assemblyman was unlawful and has ordered his restoration as the constituency’s representative. The court found that, among other things, the DUN speaker had not accurately stated sections of the constitution, such that the rule of natural justice had not been complied with. The speaker also did not accord the assemblyman adequate time and opportunity to defend himself.

2. The Singapore High Court has dismissed a legal challenge against recent changes to the elected presidency scheme, finding that the applicant had no legal standing to bring the challenge. The applicant did not meet any of the three criteria to find legal standing. The criteria are that he must have personal interest in the matter; he must prove there are special damages or there must be serious illegality going on.

3. The South African Constitutional Court has given judgment in three consolidated applications for leave regarding an amendment to legislation. The amendment stated that subsidised set top boxes should not have the capability to decipher encrypted broadcast signals. Among other things, the court held that since there was a rational connection between the means and the purpose of the amendment and that the television licensees had been consulted with regard to the amendment, judicial intrusion was therefore constitutionally impermissible.

4. The Delhi High Court has dismissed a petition for judicial review, on the basis that the purpose of the review are fairly limited and cannot be used as a tool to re-argue an appeal. The case concerns the Indian Supreme Court’s collegium system for the appointment of judges.

Recent Scholarship

1. Arnaròttir, Oddńy Mjöll, The “procedural turn” under the European Convention on Human Rights and presumptions of Convention compliance International Journal of Constitutional Law (2017) (analyses the “procedural turn” in the case law of the European Court of Human Rights and provides conceptual clarification)

2. Crawford, Lisa Burton, Who Decides the Validity of Executive Action? No-Invalidity Clauses and the Separation of Powers Australian Journal of Administrative Law (2017) (confirms that no-invalidity clauses are not inconsistent with Section 75 of the Constitution and explains how such clauses should be interpreted by the courts)

3. Jhaveri, Swati, Advancing Constitutional Justice in Singapore: Enhancing Access and Standing in Judicial Review Cases, Singapore Journal of Legal Studies (2017) (article discusses how, while explicitly rejecting the possibility of public interest litigation, the Singapore courts have provided some scope for developing a more circumscribed form of “representative” standing in serious cases of illegality or unconstitutionality)

4. Rodin, Siniša, Constitutional Relevance of Foreign Court Decisions, American Journal of Comparative Law (2016) (the author suggests that the value of foreign legal materials in domestic adjudication is primarily cognitive while their normative value depends on their compatibility with EU’s constitutional ontology as understood by the EU Court of Justice)

5. Scott, Paul F., Ouster clauses and national security: judicial review of the Investigatory Powers Tribunal, Public Law (2017) (author analyses a recent UK High Court decision holding that an ouster clause suffices to prevent the court from carrying out judicial review of the tribunal’s decisions and argues that the decision was incorrect)

6. Zhu, Guobin and Antonios Kouroutakis, The Hong Kong Subconstitutional Model of Separation of Powers: The Case of Weak Judicial Review, Hong Kong Law Journal (2017) (the authors’ main argument is that the model of separation of powers in Hong Kong is due to its interaction with the subconstitutional character, resembling the model of weak judicial review)

 

Current Events

1. Application for Singapore’s first reserved presidential elections has opened. This election being reserved for Malay candidates, following the constitutional changes made to the elected presidency last November. In addition to a certificate of eligibility, candidates will also need a community certificate confirming they belong to the Malay community.

2. Hong Kong’s Legal Aid Department has proposed banning a former civil servant from receiving financial assistance for the next three years. Since 2006, the former civil servant claims to have filed more than 20 judicial review applications in his “fight against injustice”.

3. Canadian authorities have opened an investigation after it emerged that a sexual assault complainant was shackled and detained in the same jail as her attacker. A provision of the federal criminal code, permitting witnesses to be detained if they refused to answer questions, had been earlier been relied upon to allow for the measures.

4. The Indian Election Commission has written to the government to “reconsider” and “modify” recent amendments regarding electoral funding. According to the Commission, the recent amendments could discourage transparency in political donation.

5. The New Zealand Government has responded to the select committee’s report on issues relating to the illegal possession of firearms. Seven recommendations were accepted, 12 rejected and one of the recommendations will proceed with changes.

6. The Law Council of Australia is calling for an end to what it calls political attacks on the judiciary, especially in cases where they might be perceived to interfere with matters currently before the courts.

7. In Malaysia, the Johor government has suggested that the federal government establish a mechanism to ensure fair distribution of the tourism tax revenue to states for the greater promotion and growth of the tourism industry.

8. South African President Jacob Zuma has filed a conditional counter-application to review the former Public Prosecutor’s State Capture report. The report had implicated various government officials, including President Zuma. The report had recommended a judicial commission to be established to investigate the claims contained within the report.

9. In the US, nearly 200 Democratic lawmakers have sued President Donald Trump for alleging accepting foreign payments and gifts, therefore breaching the emoluments clause of the Constitution.