Judicial Review in Constitutional Law (Principles of constitutional…
Judicial Review in Constitutional Law
Supremacy of the Constitution
Basis for constitutional supremacy
Art 4: laws enacted after the Constitution's commencement are void if inconsistent with the Constitution. Art 162: transitional provision stating that laws in existence before commencement continue in force but must be construed in such a way as to bring them into conformity with the Constitution.
Tan Eng Hong
: held that on purposive reading, pre-commencement laws can also be declared void if inconsistent with the Constitution.
Marbury v Madison
: Even without an explicit provision in the Constitution, the
Constitution forms the fundamental and paramount law
and any act of legislation repugnant to the Constitution is void.
Taw Cheng Kong (CA)
: Parliament had power to enact the Constitution and the RSIA as
legislative powers of an independent and sovereign state vested in the Legislature on Singapore Day.
Doctrine of severance
: Art 4 provides for unconstitutional portion of a law to be severed. According to the US case of
Alaska Airlines Inc v Brock
Court considers whether the truncated statute will operate in the manner that legislature intended.
Even if the first part is satisfied, the court must determine if the legislature would have enacted the truncated statute with only the remaining provisions.
Jaclyn Neo & Yvonne Lee
: Diceyan doctrine of constitutional supremacy, which LR Penna abbreviates the 3 Diceyan criteria - codification, rigidity and judicial review.
Singapore's Constitution formally meets the criteria for supremacy, but Parliament effectively has the power to alter the Constitution as freely as other law.
Easy to amend with 2/3 majority.
Judicial power has not been robustly exercised. Only one instance where HC struck down a statutory provision as unconstitutional, but overturned by CA.
Parliament acts as de facto sovereign institution.
The judiciary's role
It is the duty of the court to
uphold and preserve rights in the Constitution
, and to impugn any Act of Parliament or any course of executive action which injures, detracts from or infringe those rights (
Taw Cheng Kong
By virtue of judicial power vested in the Supreme Court under
, the SC has
jurisdiction to adjudicate on every legal dispute
on a subject matter in respect of which Parliament has conferred jurisdiction on it, including any constitutional dispute (
Yong Vui Kong
Deference to the political branches of government
Notion of sep of powers is a cornerstone of representative democracy. There are 2 arguments for judicial deference
Constitutional principle: Policy is a matter for the elected representatives, who has the mandate and political authority to decide what would confer the greatest good to the greater number.
But courts have the duty to pronounce on the legality of govt actions (
Tan Seet Eng
Relative institutional capacity: adversarial process has inherent limits in the policy realm. The elected representatives would have had the benefit and advice of professional expertise. The courts are not equipped to scrutinize decisions which are laden with policy issues or security issues or which call for poly-centric political considerations (
Tan Seet Eng
Tan Seet Eng
: on matters of national security, courts typically defer to Executive, but courts can still scrutinize the exercise of discretion, on the grounds of illegality, irrationality and procedural impropriety.
Comparison with the Human Rights Act 1998 (UK)
: the 3 stage test of proportionality for determining whether a limitation is arbitrary or excessive.
Doctrine of proportionality is different from heightened scrutiny and traditional grounds of review - it looks at the balance struck.
4 principles of deference transplanted to HRA in
International Transport Roth GmbH
. But TRS Allan disagrees that doctrine of deference should be transplanted from admin law into consti law where constitutional rights are involved. As well as criticisms about deference in general.
Chee Siok Chin
Art 14 contains 2 categories of restrictions - necessary or expedient, and to protect privileges of Parliament, defamation, etc (which the test of necessity or expediency does not apply to).
Michael Hor does not see the logic in this rationale - issues of national security subject to more scrutiny than defamation?? Also compared to ECHR.
Amendment and interpretation of the Constitution
Constituent power to amend the Constitution
Any ordinary law that is inconsistent with the Constitution. What about constitutional amendment act? If it is ordinary law, then any amendment would be inconsistent. To avoid this problem, there is distinction between legislative and constituent power.
Art 5 amendment of Constitution.
LR Penna: the doctrine of harmonious construction would require the interpretation of Art 5 as vesting "constituent power" in the Legislature to amend the Constitution, and "law" in Art 4 as enactment made pursuant to "legislative power".
The basic features / structure doctrine
See RP. The BSD postulates that there are certain fundamental features of a constitution that cannot be amended by Parliament (
Teo Soh Lung
Principles of constitutional interpretation
Presumption of generous interpretation
Ong Ah Chuan
: where it concerns fundamental rights and freedom of individual guaranteed by the Constitution, e generous interpretation should be used to give to individuals the full measure of the fundamental liberties.
Where the question is whether the Constitution has used an expression in the wider or narrower sense, the court should always lean to the broader interpretation unless something in the content indicates otherwise (
Jumbunna Coal Mine NL
Presumption of constitutionality
Lim Meng Suang
: The starting point is a strong presumption of constitutional validity. This is effected in 2 ways: court prima facie leans in favour of constitutionality, and it is for the party who attacks the validity to adduce some material or factual evidence to show that it was enacted arbitrarily or had operated arbitrarily.
Rajeevan Edakalavan v PP
: the duty of the judge is to adjudicate and interpret laws with the aim of ensuring that justice is upheld. He is in no position to expand the scope of or imply into the Constitution and other legislation his own interpretation which is clearly contrary to Parliament's intention.
Balancing act between upholding true rights of the individual and not creating rights outside the Constitution.
Constitutional Reference No 1 of 1995
: a purposive interpretation should be adopted in interpreting the Constitution to give effect to the intent and will of Parliament. If there are 2 competing interpretations, prefer the one that gives effect to the purpose.
Courts cannot stretch the language of Constitution. Should, pursuant to the doctrine of harmonious construction, read the constitution in its entirety to give effect to all provisions, and not distort one right to the perversion of others (
Chee Siok Chin
VK Rajah: courts must exercise fidelity to the constitutional text, and not interpret what the courts hold for it to be.
Interpreting fundamental liberties
Basis of fundamental liberties
There can be no bargaining with regards to rights. Rights are inherent in us being people - citizens or non-citizens. They are not given, as what is given can be taken back.
Reject social contract argument -
Taw Cheng Kong
Sources of rights
Implied rights - courts do not have the power to create rights out of a whole cloth simply because they consider it to be desirable (
Yong Vui Kong
). It has to be derived from the Constitution.