JOLYN’S ADMINISTRATIVE LAW HYPO FRAMEWORK
Summary of what happened in one sentence e.g. _____ applied for a licence but did not get it.
_______ is seeking judicial review of __________’s decision to _________.
Incorporate desired remedies (certiorari/mandamus/prohibition) e.g. _____ is seeking certiorari to quash
_______’s decision to ______.
Give a short summary of your analysis e.g. A has 3 potential grounds for review, but [insert possible
ground] is his/her strongest ground whereas [insert possible ground] is weak.
In order to be able to argue these grounds _______ must first clear the preliminary issue of
whether _________ has standing and whether the court will grant leave.
1. Standing
Given that there is to be no mixing of public and private law remedies in the application, _______ will have to
make an election (Re Application by Dow Jones (Asia) Inc) between prerogative writs under an O 53
application and private law remedies.
If private law remedy is important:
However, with the recent amendments to O 53 introducing a new r 7 to O 53, once an applicant has
convinced the Court that he is entitled to one of the reliefs under O 53, the court is allowed to grant the
applicant other relevant relief if the applicant can prove that he has a valid cause of action such that the
relevant relief would have been obtainable if it had been claimed in a separate action. Thus, Seow Zhixiang
argued in his article ‘Rationalising the Procedure for Judicial Review in Singapore’ that the court can
effectively order all appropriate remedies since it should be relatively easy to grant a prerogative order or
declaration as a precursor to other remedies.
If action is against a Government body:
Furthermore, given that the original definition of “civil proceedings” in the Government Proceedings Act
was expanded to include “proceedings for judicial review and recovery of fines and penalties and an
application at any stage of a proceeding” it would seem that there is now an alternative avenue to seek
remedies, both the prerogative writs and the private remedies, against the Government via the Government
Proceedings Act.
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Prerogative writs – issuable only in the High Court: Section 18, Supreme Court of Judicature Act
o Certiorari – retrospective as it quashes an illegal administrative act
o Mandamus – compels an official to do something e.g. take into account a relevant
compensation
o Prohibition – preventive and prospective in nature
Private law remedies include damages, injunctions and declarations – in such cases the public body is
treated like an ordinary private person – available for both the High Court and the Subordinate Courts
o Declaration – O 15 r 15 Rules of Court
o Injunction – O 29 Rules of Court
o Damages
If _______ elects to ask for [insert type of prerogative writ(s)] and/or a declaration which is allowed under
the recent amendment to O 53] under an application for judicial review under O 53, _______ has to have a
“sufficient interest” in the manner to which the application relates in order to have locus standi to sue.
Although there is no specific mention of “sufficient interest” in O53, the Singapore courts appear to have
accepted the same sufficient interest test as is provided in the English Order Rule 3(5) and applied it
liberally (Colin Chan v Minister for Information and the Arts).
However, CJ Chan in an extra-judicial lecture hinted that the Singapore courts might not apply the test with
the same rigour as the UK courts citing the concern that allowing too many unmeritorious cases to be fought
could seriously curtail the efficiency of the Executive.
If the person is not personally involved in the issue:
Given the importance of the issue and the strength of the merits of the application, the Court is likely to
grant _______ locus standi to sue notwithstanding the limited personal involvement of the applicant, which is
consistent with the move in recent years towards encouraging public participation in the administrative
process.
If a constitutional right is at stake:
Constitutional rights must reside in the apex of any hierarchy of interests worthy of judicial protection, and
hence, they merit liberal standing rules.
2. Leave
Leave of court must be granted first before an application for judicial review is heard on its substantive
merits so as to sift out frivolous cases.
Leave will be granted where a quick perusal of the matter should indicate at least an ‘arguable case’ or a
‘prima facie case of reasonable suspicion’ of administrative illegality (IRC v National Federation of
Self-Employed and Small Businesses) affirmed by Karthigesu JA in Colin Chan v MITA to be
substantially the same test. It presents a very low threshold and is likely to be satisfied.
Duty to exhaust alternative remedies
Courts may refuse judicial review where alternative remedies are available and have not been exhausted
(Government of Malaysia v Jagdis Singh).
However, the courts will allow judicial review notwithstanding the availability of an independent remedy
where on a perusal of the matter, there are genuine grounds and if the court is a more appropriate forum to
decide because the application raises issues of law of public important or if judicial review is more efficient
(MPPP v Syaraikat, Chiam See Tong v SDP).
In deciding whether or not to grant leave of court, the court will also consider whether the matter is
itself justiciable looking at the actors involved and the nature and impact of the powers and duties
that they perform.
3. Who are the actors?
If public body exercising a public power given by statute or delegated legislation:
Given that __________ is a public body who in _________ was exercising a public power granted by _____________ its
exercise should be justiciable since the courts in interpreting the scope of such powers are delineating the
boundaries of parliamentary intention.
If public body exercising a private power:
__________ is a public body with statutory powers and duties for some purposes but [insert the particular
decision] may be immune from review because it falls outside the ambit of its statutory powers and
therefore, the field of public law (Public Service Commission v Lai Swee Lin Linda )
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
In that case there was a failed judicial review application in relation to the termination of a legal officer
after an extended probationary period. The Court of Appeal characterized the nature of the relationship
as a contractual one, for which the appropriate remedy lay in private law. It did not find a public law
element in the contract, which would be present if there were statutory restrictions on the powers of
dismissal or if a statute required that such cases be referred to a disciplinary tribunal, over which
supervisory jurisdiction would lie.
Furthermore, the issue was particular to Lai, rather than a challenge against a general policy
affecting all employees of a public body.
o
The Instruction Manual, which was incorporated into and became part of the contract
(providing appeal to various statutory bodies in relation to decisions affecting her
employment) did not constitute primary or subsidiary legislation, being described as “internal
administrative guidelines for the operation of the civil service”, and was held to constitute
“instructions regulating the terms of service of persons employed by the Government”, albeit
sans statutory force and unrelated to the performance of any public duty.
The point is that statutory bodies do not always exercise statutory powers in making certain decisions.
What must also be examined is the source of power in relation to a particular transaction, whether it was
contractual or the discharge of a public duty: UDL Marine (Singapore) Pte Ltd v Jurong Town Corp
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
In that case, the power exercised by the JTC to lease land was treated as a private act since granting
leases “was not something a private individual would not be capable of doing”.
This characterisation was maintained despite the fact that JTC, a statutory body, had taken into
consideration matters of public interest, not drawn from the statutory grant of power, such as the
“quality of jobs generated” and the “value added to the GDP”, as Lai J reasoned that private landowners
could also consider non-commercial factors in leasing decisions.
Application: Given that ___________________________ the remedy should therefore lie in private law and the
decision should not be justiciable.
If private body:
__________ is a private body. Thus judicial review might not be as readily available because it normally
extends only to ‘public’ power devolving from Parliament through statute or delegated legislation. However,
the private and public law divide is breaking down as the scope of the court’s supervisory jurisdiction has
been extended to prerogative powers that are infused with a public element. Justice Pillai in recently
granting leave to apply for judicial review of the PM’s discretion in calling for a by-election held that “the
performance of powers and duties which involve a public element…is susceptible to judicial review”.
(1) The public element could arise because although ___________ is a private body, it is legislatively
recognised and exercises a function that serves the public interest (OKS & Partners Sdn v Tengku Noone
Aziz).
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Abdoolcader J in OKS & Partners Sdn v Tengku Noone Aziz noted that Lain (see below) “would appear
to suppeditate the key to opening the doors for the extension of the prerogative orders to bodies
owing their powers solely to contract provided their powers although contractual are infused
with a public element, and there is also authority to the effect that a body legislatively recognised
may be subject to such jurisdiction.”
o In that case, Malaysian Federal Court overruled the High Court in finding that the Kuala
Lumpur Stock Exchange was subject to judicial review. Although it was a company
incorporated under the Companies Act and therefore an entity formed through its
members’ consensus, it was a hybrid insofar as it was legislatively recognised.
o Its function was to regulate facilities for the conduct of a stock exchange in Malaysia. Hence, it
was not merely an “exclusive business club” as the High Court stated, but served the public
interest.
o Public element was further enhanced in that these statutorily conferred disciplinary powers,
which affected the livelihood of KLSE members, imposed a duty to act judicially on the
committee.
o KLSE was a statutorily regulated entity under the Minister’s overall direction.
o Certiorari lay for legislatively regulated private bodies that exercised statutorily
conferred powers of consequence to the public interest.
(2) The public element could arise because although the __________ is a private body, the nature of its
function is of a public rather than a private nature (R v Criminal Injuries Compensation Board ex p Lain).
It can therefore be argued that __________ in [insert powers/role of the body] was performing an important
public duty where the rights of [insert group of people] are affected by its decisions just like the Panel on
Take-overs and Mergers in R v Panel on Take-overs and Mergers, ex p Datafin whose immense powers
were of widespread application, operating wholly in the public domain.
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
In R v Criminal Injuries Compensation Board ex p Lain, the Compensation Board, which derived its
powers from the royal prerogative, was charged with the function of determining the payment of
compensation and thus determination was a pre-requisite to the actual payment of compensation by
the Crown. The Court found that the limits to certiorari were not fixed but could be extended to
accommodate changing conditions. The constant requirement was that a body subject to certiorari
must have been performing a public duty. The court in Lain held that the essential enquiry was not the
source of the Board’s power but the nature of its function and that so long as this was of a public
rather than of a private nature, it was reviewable.
Similarly in R v Panel on Take-overs and Mergers, ex p Datafin, Court of Appeal held that the selfregulatory, non-statutory Panel on Take-overs and Mergers, an unincorporated association without
legal personality, was subject to judicial review. The function of this panel is to protect investors in the
target company during the course of a takeover.
o CA held that ‘source of power’ test while usually decisive was not the sole test for
determining whether a body was subject to review. Lloyd LH noted that where “the source
of power is contractual, as in the case of private arbitration…the arbitrator is not subject to
judicial review.”
o Useful to look at both the source and nature of the power.
o A body may be subject to judicial review where it exercises public law functions or
where such exercise has public law consequences. The Panel, which had immense de facto
power in formulating and applying the City Code on Take-overs and mergers, “is performing a
public duty and an important one…[where] the rights of citizens are indirectly affected by its
decisions.” Panel’s immense powers were of widespread application, operating wholly in the
public domain in that its codes and rulings applied to all who wished to make take-over bids
or promote mergers.
(3) The public element could arise because although the __________ is a private body, its powers have public
law consequences and affect such a wide section of the public such that a duty to act judicially should be
imposed on it (OKS & Partners Sdn v Tengku Noone Aziz) such as the Panel on Take-overs and Mergers in
R v Panel on Take-overs and Mergers, ex p Datafin whose immense powers were of widespread
application, operating wholly in the public domain. The rights of citizens are indirectly affected by its
decisions.
(4) The public element could arise because although the __________ is a private body, its decisions has a
public law impact in affecting important individual interests and they should attract judicial review
(Woon v Hochstadt, Kay Swee Pin v Singapore Island Country Club).
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
Woon v Hochstadt involved the right to work, which implicated livelihood issues. “The Malayan Racing
Association” affects the lives of a sizeable portion of the population…[The MRA] monopolize this trade
which is significant to the public and some say that they have even taken on the character of an
industry. By such acts, one has little doubt that the MRA does exercise a public law function or the
exercise of its function has public law consequences.”
o Selvam JC’s approach in Haron bin Mundir v Singapore Amateur Athletics Association
seems to have been based on the ‘source of power’ approach since the case was held to be not
concerned with an application for judicial review. However, he found breach of an implied
contractual term to exercise penal power over Haron during the disciplinary proceedings in
accordance with natural justice rules. The contract contemplated a hearing for it affected the
rights and livelihood of persons as a matter of public policy.
Important economic interests attracted judicial review over the decision of a social club disciplinary
committee which had breached its duty to act fairly; what was at stake in Kay Swee Pin v Singapore
Island Country Club was transferable club membership which had high social and economic value.
Considerations of reputation also featured strongly in that case.
The same level of review does not apply across the board. For example, it may be restricted to issues of
natural justice and bad faith where applied to social clubs: Kay Swee Pin
4. Informal/Formal – only if question involves subsidiary legislation/ministerial circulars
or administrative guidelines that lack juridical status
Another issue is whether the subsidiary legislation/ministerial circular/administrative guideline is itself
reviewable. Because different rules apply to formal subsidiary legislation and informal rules, it is crucial to
ascertain whether [insert name of subsidiary legislation/ministerial circular/administrative] is a formal
subsidiary legislation or an informal rule.
Test:
Subsidiary legislation has essential law-making quality and alters existing law through creating and
conferring new powers or duties on the relevant parties: Cheong Seok Leng v PP

Thus in Cheong Seok Leng v PP the assignment of “civil defence duties” to the Vigilante corps was
found to be of legislative effect because it was intended to charge the Vigilante Corps with additional
functions and duties. In making the assignment, the Minister was determining the content of the
Vigilante Corps Act.
If formal subsidiary legislation:
Reference has to be had to the parent statute and judicial review might then be as traditional understood – a
means to enforce parliamentary will by ensuring compliance with statutorily defined boundaries of power.
Procedural grounds of review:

Formal subsidiary legislation needs to be published in the Gazette (Section 23(1), Interpretation Act)

Minister may not delegate his/her power to issue/making subsidiary legislation.
Substantive grounds of review:

Outside the scope of the parent Act (Cheong Seok Leng v PP following McEldowney v Forne) and
the court here has a threefold task: (1) Determine the meaning of the words in the parent Act, (2)
Determine the meaning of the subordinate legislation and (3) Decide whether the subordinate
legislation complies with the description in the Act. Note that this is difficult to prove because the
rule/instrument need only be incidental to the purpose of the Act (MM Pillay v PP).

Unconstitutional (Cheong Seok Leng v PP)
If ministerial circular or administrative guideline:
Given that there is no statutory scheme of reference by which the courts can authoritatively interpret, the
best argument that can be put forth is to justify judicial review for informal rules is that it is part of the
scheme of checks and balances interwoven into the constitutional framework, which is based on the
separation of powers, rule of law and democracy. If informal rules are non-justiciable, their makers will be
accountable to none.
The court would assess the validity of the informal guidelines against four criteria: Lines
International Holding (S) Pte Ltd v Singapore Tourist Promotion Board
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Courts must adhere to the principle of non-substitution in not replacing its preferred policy for that of
the decision maker;
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Policy must not contravene Wednesbury unreasonableness;
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Decision maker in adopting the policy must not fetter its discretion and must be prepared to make
exceptions where individual cases warrant such treatment;
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Informal rules must be made known to the persons affected. This last criterion is the analogue to the
rule of law requirement that formal rules be published to serve the value of transparency, as one basic
function of the rule of law is that law, to be obeyed, must be capable of guiding behaviour.
Note that there is a presumption that a policy is legal and the burden of proof is on the claimant: Colin
Chan v PP
5. Law/Fact
______________ are questions of fact that courts are generally more reluctant to intervene in because in
deference to an administrative body’s expertise in its fact-finding functions, judicial review is considered a
less apt forum to assess facts.
If factual finding lacks evidential support:
Courts in judicial review proceedings will intervene only in serious cases where the factual findings
are devoid of evidential support or an unreasonable conclusion is made on the factual bases: Coleen
Properties Ltd v Minister of Housing and Local Government . Failure to admit evidence is an error
of law, which may be quashed.
If fact is a precedent or jurisdictional fact
Precedent or jurisdictional facts, upon whose objective existence the exercise of administrative
power depends, are subject to a more stringent degree of judicial scrutiny.

Scope of review depends on whether the court is handling a precedent fact to which the ‘precedent fact
principle of review’ applies: Chng Suan Tze v Minister for Home Affairs

Court is to determine whether the fact has been established on a balance of probabilities before it
reviews it on the GCHQ grounds.

A precedent fact involves a true/false proposition rather than a reasonable opinion and must be proved
in terms of justification on the evidence: Re Fong Thin Choo
If fact is a non-precedent fact
Where a non-precedent fact is involved, a less rigorous standard is applied: issue is whether one can
reasonably come to a decision on the evidence i.e. REASONABLENESS. In reviewing this, the court must
inquire into the existence of the facts upon which the evaluation was made.
6. Errors of law
If error of law is an error of law going to jurisdiction:
_________ can argue that ______________ is an error of law going to jurisdiction (used in the pre-Anisminic sense)
on which the tribunal’s power to act depends. Therefore it is ultra vires and the decision is nullity.

Note that post-Anisminic the category of errors going to jurisdiction was significantly widened.
If error of law is an error of law within jurisdiction but is a patent error:
_________ can argue that ______________ is an error of law within jurisdiction (used in the pre-Anisminic sense)
but it is a patent error, which should be evident just from an examination of the record. Hence the decision
is ultra vires even through the authority had not exceeded the bounds of its jurisdiction: R v
Northumberland Compensation Tribunal ex p Shaw
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
Current approach appears to be that adopted in Page v Hull University Visitors, which was
followed by the Malaysian Court of Appeal in Syarikat Kenderaan Melayu Kelantan Bhd v
Transport Workers’ Union. Gopal Sri Ram JCA approvingly quoted Lord Browne-Wilkinson in
substantiating his assertion that the distinction between jurisdictional and non-jurisdictional errors
ought not to be maintained.
o “In my judgment, the decision in Anisminic…rendered obsolete the distinction between errors
of law on the face of the record and other errors of law by extending the doctrine of ultra vires.
Thenceforward it was to be taken that Parliament had only conferred the decision-making
power on the basis that it was to be exercised on the correct legal basis: a misdirection in law
in making the decision therefore rendered the decision ultra vires…”

B.C. Gould in “Anisminic and Jurisdictionl Review” likewise was of the opinion
that the effect of Anisminic is to remove the distinction between jurisdictional errors
and non-jurisdictional errors.
This seems to open the door to accepting that all errors of law are open to review. Lord BrowneWilkinson stated that ‘in general any error of law made by an administrative tribunal or inferior court
in reaching its decision can be quashed for error of law’.

However, irrelevant errors of law may not be liable to be quashed. “The mere existence of a
mistake in law made at some earlier stage does not vitiate the actual decision made; what must be
shown is a relevant error of law i.e. an error in the actual making of the decision which affected the
decision itself.”
o Nevertheless, a degree of judicial discretion is still involved in assessing what constitutes a
‘relevant’ error of law.
If error of law is an irrelevant error of law
However, ______________ is a mistake of law made at an earlier stage that does not affect the actual decision
made and thus though it may be reviewable a remedy is unlikely to be granted e.g. no certiorari – may not
be quashed: Page v Hull University Visitors
Anisminic grounds of review (especially relevant when there is an ouster clause)
Lord Reid drew a distinction between “narrow” jurisdiction and “broad” jurisdiction that are all errors of
law “going to jurisdiction” and can be made a nullity. He did not provide an exhaustive list but included as
possible grounds of review:

Acting beyond power  Illegality

Acting in bad faith

Non-compliance with natural justice  Procedural impropriety

Statutory misconstruction  Illegality

Taking into account irrelevant matters or failing to take into account relevant matters
(relevancy)  TLA associated this with illegality and Winslow associates this with Unreasonableness
but TLA says that if GCHQ categories are too contrived, it is possible to argue that this is a separate
ground

Asking the wrong questions
Lord Diplock in GCHQ categorised the grounds for judicial review as follows: illegality,
irrationality, procedural impropriety and “possibly” proportionality. Contravention of any of
these non-mutually exclusive grounds will render a decision ultra vires. The Court of Appeal in
Chng Suan Tze v Minister of Home Affairs adopted these grounds.
7. Control of substantive discretion
A. Non-exercise/fettering of discretion
The discretion of a decision-making can never be “fettered” or limited (Padfield v Minister of Agriculture,
Fisheries and Food).
If rigid adherence to policy:
Hence, ______________ can argue that there was non-exercise/fettering of __________’s discretion because there
was too rigid adherence to [insert policy guideline] that is designed to structure discretion.
It is noted that agencies or bodies, which exercise their functions and carry out their duties within a
statutory framework, are entitled to adopt a general policy in the exercise of such functions, duties and
powers. Accordingly, prima facie, there can be no objection to the adoption of a general policy (Komoco
Motors Pte Ltd v Registrar of Vehicles).

Note that the policy itself might be subject to review – see rules on Ministerial Circular/Administrative
guidelines above.
Nonetheless, the objection is in ________’s overly rigid adherence to the policy. An authority must not shut its
ears to an application. ________ was being unduly inflexible and was not prepared to make exceptions to their
policy despite this case involving novel features (British Oxygen Co Ltd v Board of Trade). The
failure/readiness of the relevant body to give a full and fair hearing and accommodate exceptional
circumstances rather than be bound by the policy demonstrated a fettered discretion/an absence of fettered
discretion (Lines International, Komoco Motors Pte Ltd).



In British Oxygen Co Ltd v Board of Trade (HL) the Board of Trade was empowered to make to any
person (carrying on a business) a grant towards approved capital expenditure incurred in providing
new machinery or plant. Board adopted a policy of denying grants for items costing less than 25
pounds and this rejected applicant’s claim for items costing less than 20 pounds each. Applicant
commenced action for a declaration on whether Board had properly exercised its discretion. The
Lordships recognized the timesaving utility of having guidelines that injected a degree of uniformity
and certainty into the process. However, the authority must not shut its ears to an application and
must always be willing to listen to anyone. On the facts, no undue inflexibility was found as the
decision-maker in question was prepared to make exceptions to their policy on applications
involving novel features.
This was followed in Lines International where the readiness of the relevant statutory bodies to
hear individual cases and accommodate exceptional circumstances rather than be bound by its
quota demonstrated an absence of fettered discretion.
In Komoco Motors Pte Ltd it was said that “In the case of fettering of discretion [through the rigid
adherence to a policy], the court's attention is directed at the question of whether a full and fair hearing
was afforded to the applicant, and whether the authority thereafter gave proper consideration to the
applicant's case.”
o The Registrar had fettered the discretion given to her under r 7(3) by her unwavering
adherence to the policy of adopting Customs' valuation of the OMVs as a basis for
assessing the ARF payable by Komoco. Although the Registrar heard Komoco's objections,
she did not do so with an open mind and was not genuinely prepared to consider if an
exception ought to be made for Komoco.
If unlawful delegation/abrogation:
Hence, ______________ can argue that there was non-exercise/fettering of __________’s discretion in exercising
his/its discretionary power, _____________ failed to apply his own mind in the matter because he/it had
unlawfully delegated/abrogated the responsibility of making the effective decision to another by

Acting on another’s instruction OR

Slavishly adopting the position taken by [insert another authority] at all material times during the
decision making process (Lavender & Sons Ltd v. MHLG, Komoco Motors Pte Ltd).

In Lavender & Sons Ltd v. MHLG the claimant bought agricultural land and applied for planning
permission to extract gravel. Planning authority refused permission and the claimant appealed to the
Minister of Housing. Appeal was unsuccessful and the Minister of Housing explained that his policy was
to reject permission unless the Minister of Agriculture was not opposed and he had objected on
consultation. Claimant sought a quashing order against the decision of the Minister of Housing.
o It was held that the Minister of Housing had fettered his discretion by delegating
responsibility of making the effective decision given by Parliament to Minister of Agriculture.
The minister failed to exercise his discretion properly or at all and the quashing order was
granted.
In Lines International Holding v Singapore Tourist Promotion Board the PSA had fettered its
discretion in “guidelines” for cruise ship operators by a self-imposed “condition” or direction to itself
that it will refuse allocation of berth to a vessel if the Gambling Suppression Branch, CID and Singapore
Tourist Promotion Board so determine that such action is necessary. Judith Prakash J held that the
condition was invalid because it is a fetter on the proper exercise by PSA of its discretion.
In Komoco Motors Pte Ltd it was said that “In a case of unlawful delegation, however, the issue is
whether the authority slavishly adopted the position taken by another authority at all material times
during the decision-making process.”
o Registrar had also unlawfully delegated her authority to Customs by refusing to consider
whether or not exceptional circumstances applied, thus justifying her disregarding her usual
policy in relation to the valuation of the OMV.


B. Illegality (with reference to a statute)
If misapplication of law regulating power/application of wrong legal test
______________ can argue that [insert name of body] did not have a correct understanding of the law that
regulates his/its decision-making power and was exercising a power that he/it did not have (Wong Yip Pui
v Housing and Development Board).


This entails delineating the scope of statutory powers, which is rarely a mechanistic exercise.
Rationale is to ensure fidelity to the statutory purpose and hence this ground operates with reference
to a statutory context.
Improper purpose
Exercising a power in a manner contrary to the policy and objects of the Act in question is an abuse of
power: Padfield v Minister of Agriculture, Fisheries and Food
The object of the Act can be either express or implied by the courts.
If express:
Hence, ______________ can argue that [insert name of body] exercised its power in a manner contrary to the
object of the Act, which is ________________. Even if the enabling legislation does not specify the purposes for
which the power may be employed, decision-makers are still constrained by the statutory scheme as a
whole, and by the purposes implicit in that scheme (Sydney Municipal Council v Campbell the Municipal
Council).

In Sydney Municipal Council v Campbell the Municipal Council had a specified power to acquire land
if they are required for improving or remodelling the city. It was held that there was “no plan of
improvement or remodelling” and that the Council did not apply itself to the consideration and
determination of the question whether the lands to be taken were required for the purpose of
remodelling or improvement (real object was to get benefit of enhanced value arising from extension)
and thus “there was no real decision or determination” by the Council.
If implied:
Hence, ______________ can argue that [insert name of body] exercised its power in a manner contrary to the
object of the Act, which can be implied to be __________________.

In R v Secretary of State for Foreign and Commonwealth Affairs, ex p World Development
Movement Ltd the Secretary of State was given “power, for the purpose of promoting the development
or maintaining the economy of a country or territory outside the United Kingdom, or the welfare of its
people, to furnish any person or body with assistance, whether financial, technical, or of any other
nature”. The Secretary of State approved aid for the construction of a hydroelectric plant on Pergau
River in Malaysia. Based on a report that this was an economically unviable project, the claimant sought
judicial review. The Queen’s Bench Division held that the criterion of economic soundness could be
read into the enabling provision such that development must be economically “sound” development.
If more than one purpose:
However, administrative action based upon mixed purposes will be lawful provided that the ‘dominant
purpose’ is a legitimate one: Westminster Corporation v London and North Western Railway Co

In that case Corporation had the power to provide public conveniences and to construct these in, on, or
under any road. It built an underground convenience in the middle of Parliament Street with access
from the pavement on either side of the street. Appellant Railway Company owned premises opposite
one of the entrances to the convenience and sought to have the conveniences removed on the ground
that Corporation wished to build a subway. The court held that “…it is not enough to show that the
corporation contemplated that the public might use the subway as a means of crossing the street…In
order to make out a case of bad faith it must be shown that the corporation constructed this subway as
a means of crossing the street under the colour and pretence of providing public conveniences which
were not really wanted at that particular place…”
If there are alternative methods of achieving statutory purpose:
Even if there are alternative methods of achieving a statutory purpose, so long as it is within the purpose,
the authority is entitled to elect between the methods: Westminster Bank v MHLG

Local authority wished to refuse planning permission and had power under two statutes – the Town
and Country Planning Act (which provided no compensation for refusing) and the Highways Act (which
provided compensation for road widening works). Landowners sought to enforce the authority’s use of
the Highways Act to get compensation. However, it was held that Parliament had provided two
different ways of preventing development and the authority could legitimately choose either way.
However, in Singapore, it seems that an administrative measure not need to directly relate to the statute’s
purpose but merely be ‘incidental to’ (PP v MM Pillay) it. This effectively gives the public body great
latitude to manoeuvre and formulate means, which may have only a bare nexus with the statutory purpose.
Nonetheless PP v MM Pillay seems to be a one-off case and it is arguable that in light of the recent political
developments towards greater government accountability PP v MM Pillay is weak authority and will not be
cited in subsequent cases.
If land development case:
Factors to be taken into account when determining whether authority acted for an improper purpose in
land development cases: Teng Fuh Holdings Pte Ltd v Collector of Land Revenue

Change of use of an acquired property and the reason for use (there may be good reasons for changes
and invalid reasons for others)

Prolonged inaction or delay in developing the land
C. Unreasonableness/Irrationality
Even if a decision is legal in the sense of being within the legislative scheme, it may still be
impugned for being substantively unlawful.
Hence, ______________ can argue that [insert name of body]’s exercise of power was unreasonable. However,
there seems to be lack of conceptual clarity regarding the exact scope of that term.
Indeed, Wednesbury unreasonableness (as applied in Lines International Holding v STPB) seems to have
been invoked in two senses:

(1) First as a comprehensive, all-inclusive umbrella term by conflating it with the tests of relevancy and
taking into account extraneous considerations (AG v Venice Simpson Orient Express Inc Ltd) and

(2) Second, in a special limited sense where a decision may be impugned if it is “so unreasonable that
no reasonable body could ever have come to it” (Chai Choon Hon v Ketua Polis Daerah Kampar and
Government of Malaysia and Dr. Benjamin George v Majlis Perbandaran Ampang Jaya).
Application: If used as a comprehensive, all-inclusive umbrella term, the decision would be unreasonable
because it can be argued that _________ took into account extraneous considerations.
However it is suggested that confining the Wednesbury reasonableness test to a limited “irrationality” test
i.e. to situations where one course of action and no other is rationally consistent with the established facts is
the better construction because otherwise, the court may be enabled to engage in judicial policy-making.
Other fundamental principles such as bad faith and dishonesty that Lord Green at one breath considered to
“stand by themselves” and then in the next breadth considered them to “overlap (with unreasonableness) to
a very great extent indeed should arguably stand by themselves as they did in Anisminic for conceptual
clarity. Indeed, Chinkin in ‘Abuse of Discretion in Singapore and Malaysia in The Common Law in Singapore
and Malaysia noted that the use of ‘bad faith’ in Lee Mau Seng v Minister for Home Affairs was unusual in
that the judge said a decision would be made in bad faith if “the President…arrived at his satisfaction
without exercising care, caution and a sense of responsibility and in a casual and cavalier manner on vague,
irrelevant or incorrect grounds…” which is more akin to unreasonableness rather than the traditional
understanding of bad faith as involving ulterior, improper, dishonest and even malicious motive.
Thus, __________ can succeed on the ground of unreasonableness or irrationality only if the decision is one
“which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who
had applied his mind to the question to be decided could have arrived at it” (Lord Diplock in GCHQ). He can
nonetheless succeed on the ground of [insert specific Anisminic ground].
D. Proportionality
Given _______ is unlikely to succeed on the grounds of illegality and unreasonableness, he/she can attempt to
argue for proportionality to be applied as a ground of judicial review, as is recognised in England and in
Malaysia (R Rama Chandran v Industrial Court).
However, it is unlikely to be available in Singapore because an independent proportionality test pegged
higher than that of Wednesbury unreasonableness necessarily involves the court in a consideration of the
merits as it tries to balance reasons of fairness and efficiency of means (Brind v SS for the Home
Department) and CJ Chan in an extra-judicial lecture opined that “merits adjudication…is not the function
of judicial review”. Singapore courts also seem to exalt efficiency to almost categorical imperative. In Colin
Chan v PP for example, Yong CJ was of the opinion that “any order other than a total blanket order would
have been impossible to monitor administratively” whereas an proportionate approach would have entailed
ascertaining the content of WTBTS publications to see whether a particular publication was harmful to the
public interest.
Furthermore, Court of Appeal judge VK Rajah opined in Chee Siok Chin v MHA proportionality is very much
a continental European jurisprudential concept imported into English law by virtue of UK’s treaty
obligations” and has “never been part of the common law in relation to the judicial review
of…administrative power or discretion. Nor has it ever been part of Singapore law”.
8. Control of procedural discretion
Diplock in GCHQ utilized the broader term ‘procedural impropriety’ instead of natural justice as it
encompasses instances of non-compliance with both common law principles of natural justice and
statutorily mandated requirements of procedural fairness. The court may imply in procedural fairness
requirements over and above those provided by statute as the justice of the common law supplies the
omission of the legislature, per Byles J in Cooper v Wandsworth Board of Works. In Singapore, the
common law is part and parcel of Singapore law by virtue of articles 9 and 12 of the Constitution.
However, the more comprehensive statutory procedural safeguards are, the less willing courts are to
intervene (Wiseman v Borneman, Furnell v Whangerei High School).
Furthermore, the common law rules of natural justice, modelled on the adversarial-adjudicative process
rights model, may prove too formal or dense in less formal settings. Hence the courts have developed an
elastic concept of the ‘duty to act fairly’ whereby the bundle of procedural rights may be varied to suit the
nature of the power exercised and the nature of the interest (Ridge v Baldwin, McInnes v Onslow Fanes).
Nature of power exercised
There is a continuum from natural justice to fairness and one spanning administrative, quasiadministrative, quasi-judicial and judicial functions. It is thought that the duty of fairness imposed on a
Minister for example must be less onerous than the corresponding duty of fairness incumbent on a judge or
a tribunal exercising a quasi-judicial function (Yong Vui Kong v AG).
Administrative
Quasi-judicial
Judicial
LOW
HIGH
Fairness
Natural justice
Nature of the interest
Megarry VC in McInnes v Onslow Fanes asserted a hierarchy of interests and suggested that the amount of
procedural protection should vary with the nature of the interest at stake, which he classified in threefold
manner:

“Forfeiture cases” where a decision takes away an existing right or position as when a licence is
revoked or a member of an organisation is expelled as in Peck v Calvary Charismatic Centre Ltd.

“Application cases” where a decision refuses to grant the applicant a right or position he seeks.

Last, the intermediate “expectation cases” where the applicant has some legitimate expectation from
what has already happened that his application will be granted e.g. when an existing (as opposed to
first time) licence holder applies for a renewal. These legitimate expectations, which go beyond
enforceable legal rights, relate to procedural rights rather than substance.



Legitimate expectations may arise from past administrative practice.
o In GCHQ a past consultative expectation practice concerning changes in conditions of service
gave rise to a legitimate expectation to be presently consulted.
o In AG of Hong Kong v Ng Yuen Shiu an administrative assurance led an illegal immigrant to
believe that before deportation he would be accorded an interview prior to a decision of his
case on the merits. He had a legitimate expectation as to the nature of the hearing but not its
outcome.
o In Re Siah Mooi Guat, the High Court distinguished Ng Yuen Shiu in holding that the absence
of a ministerial promise meant that she had no legitimate expectation to continue to reside in
Singapore until the expiry of her re-entry permit.
Where no regular practice had arisen in respect of a first time occurrence, no legitimate
expectation was raised: Ahmad Tajudin v Suruhanjaya Pelbuhan Pulau Pinang
A public announcement that an inquiry committee would be established to investigate the
collapse of the Highland Towers created an impression in the public mind and a legitimate expectation
of the applicant that the findings of said committee would be followed: Dr. Benjamin George v Majlis
Perbandaran Ampang Jaya
Megarry VC suggested that forfeiture cases should enjoy the fullest measure of procedural protection while
application cases would be accorded a minimal measure. The idea is that ‘lesser’ interests merit ‘lesser’
procedural protection.
This approach has been severely criticised and an alternative suggestion is that the appropriate level of
procedural protection should rest on the impact a decision actually has on the individual, since the denial
of forfeiture, application or expectation interest could be similarly severe in effect.
Application
Expectation
Forfeiture
LOW
HIGH
Minimal impact on individual
huge impact on individual
If case deserving of the full common law rules of natural justice (e.g. judicial power +
forfeiture interest):
Rule against bias

Rule against bias asserts that one may not judge a case in which one has a personal or pecuniary
interest.

Both actual and apparent bias (in the minds of right-minded people) is prohibited (Yong Vui Kong v
AG) because bias is insidious and there is public interest to have confidence in the integrity of justice.
Justice should not only be done but be seen to be done.

The test to be applied in determining whether apparent bias has been made out is the reasonable
suspicion test (JBJ v Lee Kuan Yew, Re Shankar Alan, Yong Vui Kong v AG) i.e. whether a reasonable
member of the public sitting in court and knowing all the relevant facts would have a reasonable
suspicion that a fair trial for the applicant is impossible even though the court itself thought there was
no real danger of this on the facts.


Rationale for reasonable suspicion test (bonus):
o Allows court to focus the inquiry from the point of view of the reasonable person observing
the proceedings
o Better emphasis of the fundamental principle that justice should not only be done but should
be seen to be done
In Yong Vui Kong v AG [2011] 2 SLR 1189 the Court of Appeal reiterated that the test to be applied is
the “reasonable suspicion” test but held that where a Minister made a public statement on the
Government’s policy on any issue, the rule against bias ought not to be applied to him as though
he were a judicial officer or a quasi-judicial officer should he later be required to exercise his
discretion on a matter relating to that policy. Otherwise, no Minister would be able to speak on any
governmental policy in public lest his statement be construed as a predetermination of any matter,
which he might subsequently have to decide in connection with the policy in question.
Doctrine of necessity is an exception to the rule against bias and operates to prevent a failure of
justice. It arises where the statute provides for no alternate forum to hear the matter where disqualification
of a “biased” member will denude the tribunal sufficiently to deny it its character or a sufficient quorum.
Fair hearing
The rules of natural justice require simply, firstly, that a party is told of the case he has to meet and of the
allegations made against him; secondly, that he is given not only a fair opportunity to put his own case, but
also a fair opportunity to correct or contradict the case and the allegations of the other party; thirdly, if a
significant point is to be taken against him by the tribunal, he should have a similar opportunity. An inquiry
of a complaint is not expected to be conducted in the manner of the trial of a case before a court of law.
However, it must satisfy these basic requirements of fairness: Stansfield Business International Pte Ltd v
Minister for Manpower

In Stansfield Business International Pte Ltd v Minister for Manpower the procedure adopted by the
ministry is a compartmentalised one of conducting interviews separately with the disputants. There
is no practice of putting the allegations of one party to the other. It was certainly not done in this
case. Although Stansfield was given an opportunity to present its case, the presentation was made
without knowledge of or reference to what the opposite party was alleging against it. So it was not
a fair or adequate opportunity.
#1 Nature of the hearing


The right to a hearing, whether written or oral, is neither automatic nor absolute: Lines International
However, the absence of a statutory requirement for a hearing is not conclusive of the issue as no man
is to be deprived of his property without having an opportunity to be heard: Chief Building Surveyor v
Makhanlall (following Durayappah v Fernando)

Prior to a fair hearing, one may claim the right to adequate notification of the date, time and place of the
hearing as well as detailed notification of the case to be met.

In Surinder Singh Kanda v Government of the Federation of Malaya a public servant in disciplinary
proceedings was not supplied with a copy of a prejudicial report by a board of inquiry which the
adjudicating officer had access to before the hearing and this amounted to a failure to afford the
appellant a “reasonable opportunity of being heard”.
Similarly in Chiam See Tong v Singapore Democratic Party Chiam was never told the real nature of
the grievance against him and hence was not fully apprised of the case against him, leaving much to
conjecture.
In Law Society of Singapore v Chan Chow Wang the Inquiry Committee did not provide Chan with a
copy of the complainant’s statutory declaration. The declaration repeated the complaint letter’s
contents. Furthermore, “The inquiry committee in cases such as the present one do not either
condemn or criticise. They merely report in regard to a complaint and if at a later date there follows a
charge, Pt. VII of the Legal Profession Act lays down specifically the tribunal, viz. a disciplinary
committee, to hear and investigate and to determine the matter and lays down the procedure
regulating such hearing and investigation. Finally, Pt. VII lays down the tribunal, viz. a court of three
judges of the High Court of whom the Chief Justice shall be one, which decides whether or not the
advocate and solicitor concerned is guilty under s 84 and the punishment that ought to be
imposed. Hence it was held that the Inquiry Committee did not act unfairly in failing to forward a copy
of the complainant’s statutory declaration to the respondent.
In contrast, Singapore Amateur Athletics Association v Haron bin Mundir the disciplinary committee
was working on a “much broader brief” than was revealed to the person whose conduct was under
inquiry.
o This fell short of fairness requirements which requires that one has a fair opportunity
to correct or contradict any relevant statement to his prejudice: Ceylon University v
Fernando

However, on the facts (student had prior knowledge of exam content and rules were
silent on how Vice Chancellor should proceed on making the decision) there was no
failure to comply with the fair hearing rule. There was no prescription of procedure
and thus the Vice Chancellor of the University can determine the procedure as he
thinks fit so long as he acts justly and honestly.
o If a case is not complex and both sides are well versed in the issue, no further particular
notice of the charges may be needed: Stevenson v United Road Transport Union cited in
Peck v Calvary Charismatic Centre




Conduct of the hearing itself must be fair and proper.
o
In Tan Boon Chee David v Medical Council of Singapore Council members were very
slipshod about their attendance at the disciplinary hearings, some not staying the whole
course of the proceeding and hence not hearing all the oral evidence and submissions made.
This substantially prejudiced the applicant and constituted a fundamental breach of natural
justice.

“Most improper for members of the council to walk in and out of the inquiry while
evidence was being recorded or to be absent altogether.
Such conduct is not only improper and unfair to the practitioner whose conduct is
the subject matter of the Inquiry but it also tends to destroy confidence in the
fairness of the council's decisions.”
In contrast, in Re Teo Choo Hong the absence of the lay member at a disciplinary hearing was
inconsequential since his function was only to observe, not vote. Hence, the applicant suffered
no undue prejudice.

o

If one side is allowed to cross-examine his legal opponent at the hearing, the other can too: Howe Yoon
Chong v Chief Assessor, Property Tax, Singapore
#2 Legal representation

Right to legal representation traces its roots to the adversarial paradigm and may be inappropriate and
even counter productive in non-judicial hearings where efficiency and informality are of the essence.

Hwang JC in Kok Seng Chong v Bukit Turf Club found no inherent common law right to legal
representation before a domestic tribunal. Such tribunals have the discretion to admit either a legally
qualified or unqualified counsel to assist the person appearing before it, based on case facts. It must
always apply its mind to the exercise of that discretion and must given proper consideration to request
for legal representation.
(1) First step is to ask whether the right to be heard applies in the present case.
(2) If the right to be heard applies, then it needs to be asked whether counsel assistance is needed for
an effective hearing given its subject matter, bearing in mind the consequences of such denial. Hwang
JC endorsed six factors listed by Webster J in R v SS for Home Department, ex p Tarrant to be
considered when deciding whether to allow counsel, in the absence of exclusionary legislation:







The seriousness of the charge and of the potential penalty
Whether any points of law were likely to arise
The capacity of a particular prisoner to present his own case
Procedural difficulties faced by prisoners in conducting their own defence e.g. lack of access to
potential witnesses
The need for reasonable speed in making the adjudication
Need for fairness as between prisoners and as between prisoners and prison officers.
Where a domestic tribunal hearing places an individual’s reputation or his right to livelihood in
jeopardy, the stronger the case for allowing legal representation is, particularly since this would
vindicate the ideal of equality under the law: Doresamy v Public Services Commission
o
o
Raja Azlan Shah J in linking the right to legal representation, which the notion of
constitutional equality in article 8 of the Malaysian constitution (in pari materia with article
12 of the Singapore constitution) implied that a fundamental right is at stake.
The introduction of the constitutional dimension into the process should lead to greater
weightage being accorded to such procedural rights where balanced against competing
demands of efficiency.
#3 Duty to give reasons
If there are express statutory inclusion/exclusion:

Certain statutes do provide for a duty to provide reasons: section 25(3), Exchange Control Act (Cap. 99)
and section 17(5), Medical Registration Act (Cap. 174) whilst the Constitution also enjoins the elected
president to provide reasons for decisions in certain instances

Constitution and certain statutes also expressly provide that the executive need not provide reasons in
relation to certain powers: article 151 and section 28(2)(b) of the Monetary Authority of Singapore Act
(Cap. 186)
If there are no express statutory inclusion/exclusion

There is no common law duty to give reasons for an administrative decision: Re Siah Mooi Guat, Doody
v SS for the Home Department
o
In that case, the Immigration provides for an appeal to Minister but does not require the
minister to give reasons for his decision.
o
Further, it was held that common law rules of natural justice do not apply to aliens in
Singapore’s administration of immigration laws. For them to apply, specific legislation needs
to be enacted.

However in Doody v SS for the Home Department Lord Mustill held that “it is equally beyond question
that such a duty may in appropriate circumstances be implied.”

Furthermore, the absence of reasons may be significant “if all other known facts and circumstances
appear to point overwhelmingly in favour of a different decision”. Then, “the decision maker who has
not given reasons cannot complain if the court draws the inference that he had no rational reason for
his decision” (R v SS for Trade & Industry, ex p Lonhro pl).
In Ramalingam Ravinthran v AG it was held that the AG has no obligation to disclose reasons for a
particular prosecutorial decision.

9. Limits
Legislative restraints
If there is a statutory ouster clause e.g. a finality clause…


Internal Security Act
Maintenance of Religious Harmony Act
Courts generally loathe ouster clauses as these contradict the rule of law whereby judges finally declare the
legal limits of power and also as the individual’s ultimate recourse to the law is denied. Hence, courts try to
construe these strictly to minimize their impact.
Ouster clauses can be circumvented by:

Borrowing the reasoning in Anisminic as was done in Re Yee Yut Ee and Stansfield Business
International Pte Ltd v Minister for Manpower that ouster clauses only applied to “real” as opposed
to “purported” determination. A decision made outside its jurisdiction was a nullity to which an ouster
clause had no relevance. Hence, ouster clauses only protect intra vires mistakes and hence, their
efficacy is subject to how expansive or narrowly reviewable jurisdictional errors are defined.
Exception is when the clause is even more specific and says that the ouster clause is effective
even for null/void determinations: Anisminic

Certiorari would lie notwithstanding an ouster clause where a manifest defect of jurisdiction is
involved, whether it is an error going to jurisdiction or an error within jurisdiction. Manifest meant no
less than self-evident or clear and this depended on the particular circumstances of each case (Chan
Siew Kim v Woi Fung Sheng Tin Medical Store).

CJ Chan in an extra-judicial lecture hinted that an ouster clause might be inconsistent with Art 93 of the
Constitution, which vests the judicial power of Singapore in the Supreme Court. If this argument were
correct, it would follow that the supervisory jurisdiction of the courts cannot be ousted, and therefore
there is no need to draw the distinction between jurisdictional and non-jurisdictional errors of law.

Malaysian Court of Appeal in Syarikat Kendaraan Melayu Kelantan Bhd v Transport Workers Union
held that no ouster clause, however widely drafted, could immunise inferior tribunals committing
errors of law from review, of which there is no exhaustive definition. This applies whether the error of
law is jurisdictional or otherwise. It rejected the Privy Council’s approach in SE Asia Firebricks Sdn
Bhd v Non Metallic Mineral Products Manufacturers’ Employees Union where the Privy Council had
held that only errors of law going to jurisdiction were justiciable and since the patent error did not go
to jurisdiction, the ouster clause contained in the Industrial Relations Act was effective.
If there is a subjectively couched power
Court has held that even absolute discretion is reviewable: Sim Soo Koon, Re Fong Thin Choo
Outside national security/ISD matters, Chng Suan Tze is still good law on the proposition that the objective
test may be applied even to subjectively worded conferrals of discretion because “the notion of a subjective
or unfettered discretion is contrary to the rule of law” and has been followed in administrative law cases in
Singapore. The modern approach is to inquire if the official had reasonable grounds for being “satisfied” and
to inquire if there was evidence upon which he was capable of being so satisfied: Tan Gek Neo Jessie, Kang
Ngah Wei v Commander of Traffic Police

In Tan Gek Neo Jessie the objective approach of the Court of Appeal in Chng Suan Tze to subjectively
worded conferrals of discretion was followed. Hence, the court could see whether the registrar had any
evidence on which she could reasonably come to her conclusion.

In Kang Ngah Wei v Commander of Traffic Police (2002) the relevant provisions of the Road Traffic
Act empower the Deputy Commissioner of Police to revoke the driving licence of a person who is a
source of danger to the public if “it appears to the Deputy Commissioner of Police that there is reason
to believe that any person who holds a driving licence is suffering from a disease or physical disability
likely to cause the driving by him of a motor vehicle, being a motor vehicle of any such class or
description as he is authorised by the licence to drive, to be a source of danger to the public and, after
making such inquiry as he considers necessary, the Deputy Commissioner of Police is satisfied that the
licence holder is suffering as aforesaid”. However, the applicant attacked the decision of the
Commander of Traffic Police to revoke her driving licence on the grounds of procedural impropriety
and/or breach of the rules of natural justice and/or unreasonableness and the court proceeded to
examine whether each of the above grounds applied, which is an implicit acceptance that even
subjectively couched powers are reviewable.
Judicial self-restraint
If it involves national security
In Chng Suan Tze v Minister for Home Affairs the Court of Appeal recognised that those “responsible for
national security are the sole judges of what action is necessary in the interests of national security, but that
does not preclude the judicial function of determining whether the decision was in fact based on grounds of
national security”.
Court of Appeal affirmed the approach in the GCHQ case where the House of Lords had determined that the
relevant decision was in fact based on national security considerations and that it was for the executive to
decide if this outweighed considerations of fairness and legitimate expectation.

Court of Appeal in Colin Chan v Minister for Information and the Arts noted that it was settled law
that issues of national security were non-justiciable and that particularly, the issue of the Jehovah’s
Witnesses as constituting a threat to national security by their refusal to perform mandatory military
service was non-justiciable.
Ask whether it is a province of executive decision-making that should be immune from
judicial review
In Lee Hsien Loong v Review Publishing Co Ltd (2007) Sundaresh Menon JC held that the court should
not assume a highly rigid and categorical approach to deciding which cases were not justiciable.
Within the span of executive decisions that are immune from judicial review are those involving matters of
“high policy”. These includes such matters as dissolving Parliament, the conduct of foreign affairs, the
making of treaties, matters pertaining to war, the deployment of the armed forces and issues pertaining to
national defence. Cases concerning international boundary disputes or the recognition of foreign
governments comfortably fall within this class of cases.
Even if prima facie, a case comes within what appears to be a non-justiciable area, the courts may intervene
if, on closer scrutiny, it becomes clear that it does not. The intensity of judicial review will depend upon the
context in which the issue arises and upon common sense. In this regard, the following principles bearing
noting:
(a) Justiciability depended not on the source of the decision-making power, but on the subject matter that
was in question;
(b) where the decision involved matters of government policy and required the intricate balancing of
various competing policy considerations that judges were ill-equipped to adjudicate because of their limited
training, experience and access to material, the courts should shy away from reviewing its merits;
(c) where a judicial pronouncement could embarrass some other branch of government or tie its hands in
the conduct of affairs traditionally regarded as falling within its purview, the courts should abstain; and
(d) In all cases of judicial review, the court should exercise restraint and take cognisance of the fact that our
system of government operated within the framework of three co-equal branches.
10. Remedies
Even if all the decision-makers made errors, the court will only award remedies for relevant errors (Page v
Hull). _______ is thus likely to get the [insert type of public law remedy] on the grounds of [insert grounds].
The court is also allowed to grant [insert private law remedy] if _____ can prove that he has a valid cause of
action such that the relevant relief would have been obtainable if it had been claimed in a separate action.
11. Context
See if there are any constitutional issues!