Response Speech by Second Minister for Law Edwin Tong to Adjournment Motion on Rule of Law, Judicial Review and the Sunlight of Scrutiny

04 MAR 2021

I. Introduction

  1. Sir, Mr Pillai has spoken about ouster clauses and asked if these could be reviewed.

II. Our Political System

  1. His speech raises questions about:

    a. The relationship between Parliament, the Judiciary and the Executive.

    b. And the respective spheres that they inhabit.

  1. These are important issues. They require a fuller discussion, beyond the time permitted today under the Standing Orders. We will set out our position more substantively, on a future occasion.

  1. Sir, as a Government, we have always been clear on our priorities and our focus:

    a. First, to have strong and effective governance, to get things done.

    b. Second, uplifting people’s lives.

    c. Third, maintaining the security of the state.

    d. And finally, ensuring the safety of our people.

  1. With your permission, Mr Speaker, may I ask the Clerks to distribute a handout on Singapore’s social and economic indicators? Annex A
  1. These indicators show that we have succeeded in achieving our priorities, and more.
  1. How do these priorities find expression in the system of government and political structure that we have?

  1. Like many others, our system is based on the separation of powers:

    a. Three branches of government,

    b. Each with its own sphere of power and responsibility.

  1. Our Constitutional framework defines the responsibilities of each branch of government.

    a. Parliament, which passes laws to promote these objectives. Through its power to amend the Constitution, Parliament also decides on the overarching framework for our system.

    b. The Executive, which administers the laws, and formulates policies to secure these objectives.

    c. The Judiciary, which applies the laws faithfully, when disputes are brought before the Courts.

III. Rationale for Political System

  1. In some other systems, the focus has been to tightly circumscribe and police the Executive. This leads to gridlock and inaction.
  1. We do not subscribe to this.
  1. Such an approach loses sight also of another key principle:

a. For the governance system to work, there must be mutual trust and respect, for each branch’s institutional expertise and competence.

b. Power and responsibility must be divided, to empower each branch, not divide.

  1. What are the reasons for our approach?

  1. Our system must ensure that we can act quickly, move decisively:

    a. To navigate challenges

    b. To seize opportunities

    c. And avoid crises. But when crises cannot be avoided – to deal with them efficiently, and effectively.

  1. Parliament and the Executive handle this.

    a. And they must account for the success or failure of their policies through the democratic process. In other words, the Executive answers to Parliament, and Parliament answers to voters in elections.

    b. Our system should empower them to take effective action, rather than to impair their ability to act through gridlock.

IV. The Role of the Judiciary in Other Jurisdictions

  1. Sir, as I mentioned earlier - many other countries have taken different approaches, and struck a different balance. Their courts have embroiled themselves in the realm of politics and policy-making – not always with happy results.
  1. With your permission, Mr Speaker, may I ask the Clerks to distribute a handout which contains some examples from these jurisdictions. Annex B

India

  1. Sir, in India:

    a. Some commentators have said: judicial activism has become judicial overreach into policy areas.

  1. We have set out one example, in the handout.
  1. Judges of the Supreme Court have themselves commented that the Judiciary has strayed into the executive domain. There is a lengthy list, as Members will see from the handout, including nursery admissions, the number of free beds in hospitals, the size of speedbreakers on roads, and many others.
  1. I think Members will agree with me that for Singapore, it is best if these matters are left for the Executive to determine.

Australia

  1. In Australia, the Government there has long been beset by litigation over immigration matters.
  1. Judicial review has been used by non-citizens to prolong their stay, at the cost of public resources.
  1. Australia’s former Minister for Immigration, Philip Ruddock, has observed that such politically controversial matters, which involve competing objectives and values, were for Parliament to determine as representatives of the people. I agree.

The United Kingdom

  1. In England, former Supreme Court Judge, Lord Jonathan Sumption, has detected “a noticeable change of judicial mood” in recent decades.1
  1. The “special cases”, once thought to be beyond the courts’ purview, such as foreign policy, “have one by one yielded to the power of the judges”.2

  1. It is therefore no surprise that:

    a. Civil servants in the UK are now given a detailed 104-page guide – aptly or perhaps sardonically - titled “Judge Over Your Shoulder”, “JOYS”, to help them assess legal risks.

    b. They have also had two rounds of law reform review on judicial review in the course of the last eight years.

  1. Lord Sumption himself notes that this state of affairs is a product of the political reality in the UK – judges have attempted to fill the gap left by politics, as the latter has lost its prestige.3 He makes a similar observation of the United States, and what he refers to as “distortions” in their governance structure that have resulted from political gridlock.4

V. The Role of the Judiciary in Singapore

  1. Sir, these approaches elsewhere are informed by different social and historical contexts.
  1. In Singapore, we have not gone down this route.
  1. We have been, and must remain careful to operate our system to maintain trust, and to keep a constructive balance between the three branches of government.
  1. The approach taken by our Courts has been instrumental to the success of the Singapore approach. Singapore Courts have been careful to strike an appropriate balance between preserving the Government’s ability to act decisively in the public interest, whilst imposing adequate safeguards to check against unlawful action. It is a delicate but very important balance, that not many other jurisdictions have managed to strike successfully.

  1. This judicial philosophy is best encapsulated in our Chief Justice’s remarks in a 2018 lecture:

    “… in Singapore… we have found that executive power can best be checked when courts eschew politics and secure a relationship of trust and respect between the three branches by recognising and maintaining the legitimate space of each.

    … First, it means that Courts should not see themselves as antagonists whose role is to obstruct governmental action, but rather as equal partners with the other branches in the common project to promote efficient administration and good and proper governance, which the Judiciary contributes to by upholding the rule of law. Second, it means that the Judiciary should not be diffident about performing its constitutional role when called upon to invalidate unlawful action…

    The difference is between a paradigm of confrontation and containment informed by mutual distrust and self-preservation and one of partnership and cooperation within a framework of governance and legality.”

  1. The principles of administrative law in Singapore give expression to this overarching approach and is based on two fundamental principles flowing from the constitutional separation of powers.
  1. First, the Executive must act within the law, and it is the role of the courts to say what the law is.
  1. The Courts can, in general, review executive action on three grounds: illegality, irrationality and procedural impropriety.
  1. Each of these grounds leaves wide latitude to the Executive.
  1. Second, and equally importantly, the Courts recognise that the exercise of executive authority is ultimately the responsibility of the Executive and not the Courts.

  1. It is the Executive which:

    a. is vested with executive authority under the Constitution.

    b. has an elected mandate, which is accountable to Parliament and at polls.

    c. has the institutional competence and resources to make judgement calls between the competing considerations that often arise in policy decisions.

  1. For this reason, the Courts have repeatedly emphasised that they do not substitute their judgment for that of the Executive, and are concerned with the decision-making process, and not its merits.
  1. I refer Members back to Annex B, at part 2, which sets out these key principles.

  1. We agree with the approach that the Courts have taken.

    a. It avoids the quagmires often seen overseas, when judiciaries step into the spheres of other branches of government.

    b. It leaves matters that are rightly determined by democratically elected bodies in the hands of these elected representatives.

    c. To paraphrase Mr Ruddock, politically controversial matters, which involve competing objectives and values, should be determined by Parliament.

VI. Principled and Calibrated Approach to Ouster Clauses

  1. Mr Pillai has referred to clauses which exclude or restrict one or more of the grounds for judicial review.
  1. The Court has held that such ouster or privative clauses are not per se wrong.
  1. We have also taken a principled and calibrated approach to the use of such clauses.

  1. They are proposed only after careful consideration of:

    a. The policy objective behind each of the proposed clauses;

    b. Whether alternative legislative tools may be employed to achieve this; and

    c. Whether the clause may be calibrated to restrict only some of the bases for judicial review.

  1. Thereafter, they are subject to rigorous debate in this House, and passed into law with Parliament’s assent.
  1. Through this approach, trust – not just within the branches but vis-à-vis each branch and the population at large, has been nurtured and sustained.

VII. Legislation Referred to by Mr Pillai

  1. Mr Pillai has referred to both the Internal Security Act (ISA) and the Criminal Law (Temporary Provisions) Act (CLTPA), which both provide for powers of detention.

  1. Such powers, as Mr Pillai has acknowledged, are necessary -

    a. To allow for pre-emptive action, to safeguard national security.

    b. And because criminal prosecution may not be possible, for example, due to evidential difficulties of admissibility.

  1. In these circumstances, Parliament, in accordance with its legislative power, vested the discretion to exercise powers of detention with the Executive.
  1. Mr Pillai has also cited various other non-security related legislation containing privative clauses, notwithstanding that these are outside the realm of national security, where speed and efficiency are also critical considerations.
  1. For a globalised city-state, thriving on open borders and human resources, immigration and foreign manpower – two areas that Mr Murali cited – are key areas of concern.

  1. They require a careful balancing of sensitive and polycentric considerations such as:

    a. Foreign relations;

    b. Transborder crime;

    c. Economic and manpower planning; and

    d. Protection of businesses and families.

  1. Immigration and foreign manpower have serious implications for our society. The experience of Australia, on immigration challenges in Court, as explained in the handout at B1 illustrates why we take the approach that we do.
  1. We have already seen xenophobia, social schisms develop in other countries. We are not immune to these pressures.

  1. It would not be appropriate to litigate such matters:

    a. Because the Courts do not have the institutional capability to know of, to consider and to balance the many considerations and concerns involved.

    b. Resolution of policy judgements by the Courts also lack the democratic legitimacy of Parliament.

  1. As the Chief Justice noted in the lecture I mentioned earlier, Courts are not especially well placed to answer such social, economic and policy questions.

VIII. Review

  1. Mr Pillai has asked for a review of the ouster clauses on our statute books.
  1. I would like to assure him that we already do this regularly. We will continue to review the need for such clauses and where necessary, carefully calibrate these clauses to the intended policy objectives behind such an ouster.
  1. I would add that we have in fact on occasion repealed ouster clauses when they were no longer necessary. This was the case for the former section 14(5) of the Employment Act.

IX. Conclusion

  1. Sir, to conclude, I would reiterate that of all three branches of Government, the Executive is best placed to make decisions and act quickly on policy matters.

    a. It is accountable to Parliament.

    b. And to the people of Singapore.

  1. We must continue to foster a system of governance which maintains a clear eye on outcomes – to improve our citizens’ lives.
  1. I refer Members again to the handout on Singapore’s social and economic indicators. This is proof of what we have achieved for Singapore with our political and governance system.
  1. It demonstrates that our political and judicial system promotes good governance and the rule of law, with clear and tangibly positive outcomes for Singapore.
  1. Thank you Mr Speaker.

1. 2019 Reith Lectures, Lecture 2, page 5.↩

2. 2019 Reith Lectures, Lecture 1, page 3.↩

3. 2019 Reith Lectures, Lecture 2, page 5.↩

4. Jonathan Sumption, Trial of the State: Law and the Decline of Politics, 2019.↩

Last updated on 4 Mar 2021