Swati Jhaveri: Revisiting Taxonomies and Truisms in Administrative Law in Singapore

Is it time for the courts in Singapore to confront the continued viability of certain entrenched features of administrative law?  I have previously argued that the time might have arrived to do exactly this.  First, I argued that the taxonomy for organising the grounds of judicial review (illegality, irrationality and procedural fairness) is likely to be incrementally tested in Singapore through the development of newer grounds of judicial review. The paper considered three particular grounds of review to exemplify this: review for errors of law; review for errors of fact and the doctrine of substantive legitimate expectations.  Secondly, and related to the first, the paper interrogated the continued utility of the ‘truism’ that courts should only review the ‘legality’ and not the ‘merits’ of executive decision-making.  I argued that this may no longer be an optimal way of balancing the various competing constitutional imperatives at play when determining the appropriate scope of judicial review by courts.  Following this critique, the paper provided preliminary thoughts on two modest proposals on how administrative law can move forward to account for the developments that are testing these features of the law.  It proposed: (a) a gradual and incremental move away from a taxonomy or categorization of grounds of review to an approach organised around varying the nature and intensity of review to demarcate the scope and boundaries of judicial review; and (b) a more intentional consideration of the way in which remedies are pleaded by applicants and framed by the courts in their rulings.

The three grounds discussed in the paper disrupt the legality/merits divide, despite efforts by the courts to rationalise and explain how they fit within this dichotomy (in common with similar efforts around the common law world). This includes the doctrine of substantive legitimate expectations, review for error of fact and review for ‘jurisdictional’ errors of law.  The question that arises is how we fit these grounds within the existing GCHQ taxonomy? Do we need to find a way of evolving the above grounds to ‘behave’ more like the existing grounds in maintaining the legality/merits divide? Or do we need to propose an alternative taxonomy? Should we move away from a reliance on the legality / merits dichotomy?  Are taxonomies even useful?  Some argue that the question is simply whether or not the court should intervene and, if so, how much it should intervene.  A dichotomy is not required for this purpose.  This question should be determined by being explicit about and balancing the range of factors that are relevant to determining the court’s role.  TRS Allan has argued that “the distinction between appeal and review must be an elastic one, permitting more intensive scrutiny of executive action which threatens basic liberties than might be appropriate in other cases” (at 183). Others are, however, concerned that the absence of categorisation or taxonomy may contribute to the lack of a proper understanding and awareness of the boundaries of the roles of different actors, and also the normative considerations that animate the various grounds of review (see chapter 3 by Jason Varuhas). In the absence of this understanding, the law cannot develop.   In attempting to come up with more accurate classifications of the grounds of review in a changing landscape of judicial review, commentators across the common law world have proposed collapsing and replacing the GCHQ taxonomy with alternative ones. This is in recognition of the fact that the distinction between legality and merits is becoming increasingly blurred through the enlarged use of substantive review or other, newer, grounds of judicial review.  My paper sets out a review of how commentators from different jurisdictions have proposed alternative classifications of the grounds of review.

In Singapore, the GCHQ taxonomy and legality / merits dichotomy have been maintained on the basis that they best strike a balance between the courts and the executive.  The courts in Singapore have frequently asserted a green light approach to judicial review.  This approach is justified on the basis of an assessment of the legitimacy and credentials of the State on a number of fronts. First, it is said to be grounded in a perceived performance-based legitimacy given that the State does act prophylactically in checking issues of legality prior to making decisions. Former Chief Justice Chan Sek Keong observed how government bodies in Singapore frequently consult the Attorney-General’s Chambers for advice and accordingly, the courts should exercise a light touch in carrying out any judicial review. Secondly, there is a reliance on the government’s emphasis on governing ‘honourably’ to justify less involved judicial review.  The 1991 Shared Values White Paper issued by the Government asserts that: “[t]he concept of government by honourable men… who have a duty to do right for the people, and who have the trust and respect of the population fits us better than the Western idea that a government should be given as limited powers as possible, and should always be treated with suspicion unless proven otherwise.” Finally, a further explanation provided by some scholars for retaining a green light approach is that the administrative state in Singapore was created primarily for the purpose of advancing a benevolent collective national goal of economic success for all citizens and at a critical time in the history of Singapore on the sudden expulsion of the latter from the Federation of Malaysia, rather than as a way of appropriating power as may be the concern elsewhere. There are signs of a shift in the court’s green light approach (and the concomitant use of the legality/merits divide).

Until and unless these shifts gain traction (and indeed to prompt a regular evaluation of the above assessment), the paper suggests two possible ways forward for the further development of the 3 grounds in question within the existing GCHQ taxonomy. These are modest methods of incrementally and gradually adjusting doctrine to evolve judicial review on the basis that it would be disruptive and unrealistic to abruptly depart from orthodoxy within administrative law in Singapore.

First, the three grounds can be re-moulded to use features of the grounds of review that make-up the existing GCHQ taxonomy. For example, rather than enforce a substantive legitimate expectation via a mandatory order that requires the executive to give effect to it, the courts can instead mandate that the executive view it as a relevant consideration, with the latter determining how much weight ought to be ascribed to it.  The question of weight can then be assessed using the reasonableness standard of review – was the relevant consideration i.e. the legitimate expectation given a reasonable assessment by the executive before it decided to depart from it?  With errors of law, the courts can introduce a reasonableness standard rather than always review for correctness of interpretation by the executive. This resonates with developments elsewhere in the common law world, most notably in Canada.  Whether the courts utilise the correctness or reasonableness standard would be tethered to the language of the specific and relevant provisions of legislation (and whether it is open to multiple possible interpretations).  It would also be tied to parliamentary intention – did Parliament intend for a particular phrase to have a single objective meaning, or was the meaning of a phrase to be tied to the factual context of the relevant area of policy and, therefore, a matter of discretion.  There are concerns with the courts relinquishing the legal interpretation of statute to the executive.  However, to this there are various responses.  Ambiguity in legislation is common and necessary, if is to remain flexible.  Parliament sometimes specifically delegates interpretative authority to the executive.  And additionally, sometimes phrases in the statute will need to evolve in meaning to deal with new phenomena.  The suggestion is not to move in the direction of Chevron and adopt a presumptively deferential starting position or to rely exclusively on reasonableness as an approach to assessing executive interpretations of legislation.  Rather it is to utilise multiple approaches to interpretation depending on the context of the statute and the case.  With respect to errors of fact, the review could again utilise reasonableness as its general standard of review, for all errors.

The collapse of these grounds into reasonableness review may cause concern that this would lead to largely disappointing results for applicants, given the fairly high threshold of reasonableness review in Singapore. Irrationality has been used sparingly and with a high threshold for an applicant to overcome. It is here that applicants (in pleadings) and the courts will need to do considerably more work in recalibrating and varying the standards of reasonableness review to suit its task across and within these different areas of review: substantive legitimate expectations, errors of law and errors of fact. There is evidence of sliding scales of review emerging in Singapore that can further evolve.  The introduction of sliding scales of review within reasonableness review will allow the incremental and gradual evolution of review in the merits space versus in more abrupt expansions evident with the doctrine of legitimate expectations and the burgeoning use of error of fact.  Importantly, none of the proposals above on the utilisation of aspects of the existing GCHQ taxonomy require: (a) a hard line adherence to the taxonomy; or (b) a reliance on the dichotomy.  The appropriate intensity of review will turn on the underlying constitutional principles at play.

The second proposal is for litigants and courts to be more intentional and detailed in their consideration of the applicable remedies in a case. There are five possible remedies available in judicial review cases: a quashing order; a mandatory order, a prohibitory order, an injunctive relief and a declaratory relief. The proposal here is to be more intentional in the use of declaratory relief. Such relief can be attractive because it provides the courts with the opportunity to issue authoritative (and possibly strong) views on the way that the government should act in order to be lawful. However, in contrast with the remaining four remedies, declaratory relief is a non-coercive mode of relief. In this way, it leaves the government with a degree of freedom and discretion on how to act going forward and best realise the declaratory indicators from the courts. Declaratory remedies can, in principle, be a good way of balancing the need to hold the executive to account while respecting the separation of powers. Again in a way that does not rely on the unstable dichotomy of legality / merits.  Such declaratory relief allows the court to take a robust stance on the questions under review while preserving some freedom of choice for the executive in the implementation of the terms of the declaratory relief. For example, in the case of Vellama d/o Marie Muthu v Attorney-General the court—had it issued a declaration—would have stated that the Prime Minister is obligated to call a by-election on a seat in Parliament being vacated within a reasonable period of time. The terms of the declaration imposed an obligation; but left a significant degree of discretion with respect to the timing of calling an election. The careful pleading of the grounds and declaratory relief (by applicants) and constitutionally-attuned phrasing of declaratory orders that balances the imperatives of the rule of law and separation of powers (by courts) can thus be a possible way forward: allowing the courts to provide guidance on avoiding errors of law and fact or breaching legitimate expectations, while preserving freedom of choice.

The development and evolution of administrative law principles is likely to be a recurrent theme in cases in Singapore going forward.  The continued stream of applications for judicial review on the back of a perceived heightened public consciousness will further nudge the development of the law.  As the courts develop the principles of administrative law, there will also be an opportunity to clarify the scope of and interaction between the various constitutional principles that are typically said to inform the advance of judicial review in a particular direction (notably, the separation of powers and the rule of law). The symbiosis of these constitutional imperatives will need to be worked out as administrative law develops. There are details that will need to be deliberated on with the two proposals set out above.  However, a sliding scale or intensity of review that can absorb new and existing grounds of review is a flexible and incremental starting point for balancing out these various constitutional imperatives in a way that fits the case at hand, as can a more intentional use of declaratory relief.  

Swati Jhaveri is a candidate for the DPhil in Law at the University of Oxford

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