September 17

ADMINISTRATIVE LAW DIGEST

This post contains a roundup of recent developments (in and out of courts) and recent 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. Canada: The Supreme Court of Canada held that the Canadian Human Rights Tribunal did not have the power to decide whether parts of the Indian Act, R.S.C. 1985 were discriminatory because legislation is not a “service” provided to the public. However, there was some disagreement as regards how courts should look at decisions by administrative bodies.
  2. Canada: The Supreme Court of Canada held that the Law Societies of British Columbia and Ontario had the power to deny approval to a proposed law school that would have required students to follow a religiously-based code of conduct restricting sexual behaviour.
  3. US: The Supreme Court of the United States held that the plaintiffs have failed to demonstrate a likelihood of success on the merits of their claim that Proclamation No. 9645 (which placed entry restrictions on the nationals of 8 foreign states) violates the Establishment Clause. The court also ruled that the President of the United States has lawfully exercised the broad discretion granted to him to suspend the entry of aliens into the United States.
  4. Singapore: The Singapore Court of Appeal rejected a challenge against the decision of the Public Prosecutor not to issue a certificate of substantive assistance to an accused who was convicted of drug trafficking, holding that the accused has failed to show that there is a prima facie case of reasonable suspicion that the non-certification determination may be quashed on the basis of any ground of judicial review, be it those provided for under s 33B(4) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed Sing).

Recent Scholarship

  1. Jhaveri, S., Reconstitutionalizing Politics in the Hong Kong Special Administrative Region of China, Asian Journal of Comparative Law, (2018) 13(1) Asian J Comp L 27 (evaluates the largely unsuccessful use of the courts thus far by Hong Kong residents to advance political reform and proposes alternative litigation strategies that can better utilize the position of the courts to re-orient all parties to the Basic Law of Hong Kong).
  2. Lee, Z. X., When is an Ouster Clause Ousted?, Singapore Law Blog (6 July 2018) (considers the decision in Nagaenthran a/l Dharmalingam v Attorney-General [2018] SGHC 112, concluding 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).
  3. Margolies, J. H., Powerful Friends: EPSA, Hughes, and Cooperative Federalism for State Renewable Energy Policy, Columbia Law Review, (2018) 118(5) Colum L Rev 1425 (examines the extent to which the Supreme Court of the United States’ recent decisions in FERC v Electric Power Supply Association and Hughes v Talen Energy Marketing, LLC will help states to reach their ambitious renewable energy goals in the absence of a comprehensive federal policy and analyses four policy tools that will be required to achieve these goals).
  4. Ng, R. & Chaisse, J., The Doctrine of Legitimate Expectations: International Law, Common Law and Lessons for Hong Kong, Hong Kong Law Journal, 48(1) Hong Kong LJ 79 (explores whether international investment law or domestic public law provides a broader notion of the concept of legitimate expectations in favour of the suing party and concludes that whether an applicant is more strategic to launch a judicial review proceeding or an international investment arbitration is based on the facts of each particular case).
  5. Nelson, C., ‘Standing’ and Remedial Rights in Administrative Law, Virginia Law Review, (2019) 105 Va L Rev (forthcoming) (critiques how modern courts and commentators have translated the discussion of “standing” in the United States Supreme Court decision of Association of Data Processing Service Organizations v Camp (1970) into the language of remedial rights and concludes that the concept of “standing” is only a preliminary screen but not the last word about whether plaintiffs have a claim for relief).
  6. Lyle, D., A Norm No More: Elected Officials’ Lack of Deference to State Courts, New York University Law Review, (2018) 93 NYUL Rev Online 14 (responds to The Power of “So-Called Judges” and concludes that the norm of an independent judiciary is not uniformly reflected in the states so long as tampering with the composition and authority of state courts is a relatively easy and common undertaking).

Current Events

  1. New Zealand: A group of 5 North Island growers filed for judicial review over an order made by the Ministry for Primary Industries to destroy or contain apple and stone fruit plant material imported from a specific United States facility since June 2012 that could not be confirmed as being free of pests and diseases.
  2. UK: The owner of an alpaca is filing for judicial review in an attempt to stop it from being culled after the Department for the Environment, Food and Rural Affairs ordered the alpaca to be put down as it tested positive for bovine tuberculosis.
  3. UK: Two human rights organizations are challenging the UK government over its refusal to implement the General Data Protection Regulation rules (which grants EU residents the right to access the personal data that an organization holds on them) in the case of immigration data.
  4. Hong Kong: The Hong Kong Court of Appeal urged the government to plug a loophole over its failure to investigate potential forced labour even though the court ruled in favour of the government in concluding that Article 4 of the Hong Kong Bill of Rights does not cover human trafficking nor does it entail an obligation to enact a specific offence to combat human rights violation.
  5. Malaysia: The Malaysian Attorney-General’s Chambers has decided to repeal the requirement of the Rules of the Court 2012 in judicial review cases in order to promote the development of constitutional and administrative law in the courts.