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Administrative Law (Theory (Separation of Powers
checks & balances
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Administrative Law
Theory
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Separation of Powers
- checks & balances
- legality not merits
- review not appeal
- decision-making not decision
- remedies: no substitution of judgment
Reasoning
- SOP limits JR to legality
- JR tethered to need to uphold Parliamentary intention
- pragmatic concerns about the institutional competence of courts vs government
(Starkstrom)
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Court's powers
- Art 93 Constitution: jurisdiction of Supreme Court
Admin law and consti law
- borrowing of admin law factors
Procedural Fairness
Ong Ah Chuan rules of NJ vs admin law rules of NJ
- They are the same in nature and function, except that they operate at different levels of our legal order, one to invalidate legislation on the ground of unconstitutionality, and the other to invalidate administrative decisions on the ground of administrative law principles…the administrative law rules of natural justice consist of two specific rules,viz, the rule against bias and the hearing rule. In my view, these two rules are the same in nature as the Ong Ah Chuan rules of natural justice as incorporated in substantive legislation in the criminal justice context
(Yong Vui Kong v Attorney-General [2011] SGCA 9)
Art 12: Prosecutorial discretion
“An inherent limitation on the prosecutorial power is that it may not be exercised arbitrarily, and may only be used for the purpose for which it was granted and not for any extraneous purpose…to give unbiased consideration to every offender and to avoid taking into account any irrelevant considerations…, the Attorney-General may take into account a myriad of factors in determining whether or not to charge an offender (including his co-offenders in the same criminal enterprise, if any) and, if charges are to be brought, for what offence or offences.”
(Ramalingam Ravinthran v Attorney-General [2012] SGCA 2)
Art 12: Discrimination
- An executive act may be unconstitutional if it amounts to intentional and arbitrary discrimination
- showed not so by relying on reasonableness of decision (illegality) and that the decision was arrived upon based solely upon planning considerations (relevant considerations)
(Eng Foong Ho and Others v Attorney-General [2009] 2 SLR 542)
Art 9: Clemency Powers
- no legal power –including a constitutional power…–is beyond the reach of the supervisory jurisdiction of the courts if it is exercised beyond its legal limits (ie,ultra viresthe enabling law) or if it is exercisedmala fide(ie, for an extraneous purpose)
(Yong Vui Kong v Attorney-General [2011] SGCA 9)
Jurisdictional Review
- ultra vires
- does the error one that takes the decision out of jurisdiction
Errors of law
- question about the legal significance of such phenomenon in the world
Errors of Fact
- question as to existence of some phenomenon in the world, application and evaluation of factual evidence on the satisfaction of the X factor
- more restrictive than error of law since getting closer to the merits
Ouster clauses
- full ouster/finality clauses (e.g. decision is final)
- partial ouster (e.g. no certiorari)
- conclusive evidence clauses
Substantive GCHQ factors review (Council of Civil Service Unions v Minister for the Civil Service [1985])
Illegality
- conditions for exercise of jurisdiction met?
- relevant/irrelevant considerations?
- proper statutory purpose?
- fetter of discretion?
- abrogation?
Irrationality
- Wednesbury irrationality
- mala fides?
- other standards
Procedural Fairness
- failure to fulfil procedural requirements
- fair hearing/duty to act fairly
- procedural legitimate expectation
- rule against bias bias
Common cases:
- dismissal (employment)
- property rights
- membership of professional body, livelihood
- club committees, reputation
Procedural Exclusivity
O.53 Rules of Court, s27 Supreme Court of Judicature Act
- multiple discretionary and procedural bars
- locus standi (sufficient interest)
- real controversy
- leave (good case)
- exhaustion of internal remedies (legislative intention that JR as last resort?)
- ouster clauses
Remedies
Prerogative powers
- certiorari (quashing order)
- mandamus (mandatory order)
- prohibition (prohibiting order)
Private law remedies
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