User:Esther.tang.2011

General principles

After examining a line of cases, Sundaresh Menon JC laid down the following principles regarding justiciability in Lee Hsien Loong v Review Publishing (”Review Publishing”):

Separation of Powers

Firstly, there are provinces of executive decision-making that are and should be immune from judicial review. This is merely a reflection of the doctrine of separation of powers embedded in Singapore’s Westminster constitutional framework.

Matters of "high policy" immune from review

Secondly, the span of executive decisions immune from judicial review include those involving matters of “high policy”. This includes the dissolving of Parliament, conduct of foreign affairs and making of treaties, matters pertaining to war and the deployment of armed forces, and national defence and thus require deference accorded to the executive branch.

Three of the cases examined included some that fell comfortably within this class. The Fagernes considered the question of determining territorial boundaries and it was held that “any definitive statement from the proper representative of the Crown as to the territory of the Crown must be treated as conclusive.” Aksionairnoye Obschestvo AM Luther v Sagor & Co and Civil Aeronautics Administration v Singapore Airlines Ltd (“Singapore Airlines”) involved the recognition of sovereign status. It was held in Singapore Airlines that “a question such as that which arises in the present case, whether an entity is a State so as to enjoy sovereign immunity in Singapore, is eminently a matter within the exclusive province of the Executive to determine, as what are involved in the question are not only matters of fact but also matters of policy.”

Other non-justiciable areas

Third, apart from issues of foreign affairs and national defence, there are other areas that are non-justiciable. An example is the interpretation of international treaties operating solely on the international plane, as illustrated in R (on the application of Campaign for Nuclear Disarmament) v Prime Minister (“CND”) where it was held that assuming jurisdiction in such areas would be an “exorbitant arrogation of adjudicative power”, as the court could not presume that its ruling would bind other states. Another non-justiciable area is where legislature has made it clear that the question is reserved for the executive to answer, as in Singapore Airlines, which considered how s 18 of the State Immunity Act subject required claiming immunity from lawsuits to obtain certification from the Singapore Government first. In those situations, it was not for the court to disregard the executive’s judgment.

Justiciable issues in prima-facie non-justiciable areas

Finally, the courts may intervene in a prima facie non-justiciable case if, on closer scrutiny, it is justiciable. This means that the ambit of the “forbidden areas” is not immutable. For example, where a question of international law affects the application of domestic law, the courts may find it justiciable. This was identified in CND, which distinguished a pronouncement of the interpretation of a treaty generally with the consideration of “the application of an international treaty by reference to the facts of an individual case.” Also, in R v Foreign Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett, the court considered how the granting of a passport is “a matter of administrative decision, affecting the rights of individuals and their freedom of travel” and thus raises issues that are justiciable.

Rejecting the categorical approach

Menon JC rejected a highly rigid and categorical approach to determining the justiciability of an issue, because the theory of the separation of powers is to be interpreted and applied sensibly. The intensity of the review will depend on the context behind it and upon common sense. This was the approach taken in R (on the application of Marchiori) v Environment Agency (“Marchiori”) which noted that “one context will shade into another.”

Menon J highlighted 4 principles that bear noting when determining whether an issue was justiciable were highlighted:

1. Subject matter: Firstly, the justiciability of an issue depended on the subject matter at hand, and not the source of decision-making power. This was the principle stated in GCHQ and reiterated in CND. Where the executive has best access to materials available, its views should be decisive or at least highly persuasive. Singapore Airlines too acknowledged that there may be matters of fact which are not within the public domain but which may be known only to the Executive. Where sensitive facts are concerned, our adversarial system is undesirable as parties must adduce evidence at a trial. Furthermore, not all pertinent facts might be presented before the court.
2. Ability of judges to balances competing policy considerations: Where the decision requires the intricate balancing of various competing policy considerations, judges may be ill-equipped to decide because of their limited training, experience and access to materials. Thus, the courts should avoid reviewing the merits of executive decisions. This was mentioned GCHQ where Lord Diplock held that the type of evidence admissible in judicial process and way in which it is adduced tends to exclude from the attention of the court competing policy considerations which need to be weighed against one another.
3. Embarrassing or tying the hands of the executive: The court should abstain from interfering where a judicial pronouncement could embarrass another branch of government or tie its hands in the conduct of affairs traditionally falling within its purview. In CND, the court held that the true purpose of seeking an interpretation on the United Nations Security Council Resolution was to limit the government’s freedom in relation to the use of military force and exercise of diplomatic pressure in advance.
4. Areas entrusted to the democratically elected: The court should always exercise restraint and keep in mind the fact that our system of government operates within the framework of three co-equal branches, and there are areas of prerogative power that the democratically elected are entrusted to take care of. Marchiori explained that “the graver a matter of State and the more widespread its possible effects, the more respect will be given, within the framework of the constitution, to the democracy to decide its outcome.” Those who are unsatisfied will sound their dissatisfaction in the ballot-box. In such instances, the Executive and Legislature are accountable to the electorate, not the judiciary.

Facts

In Review Publishing, the appellants were the defendants, Review Publishing and Mr Hugo Restall, who resided and were incorporated in Hong Kong. The respondents, the Prime Minister and Minister Mentor of Singapore, obtained leave to serve writs to them out of the jurisdiction, but appellants challenged it on 2 grounds. The second ground related to the manner of the service of the write: It was argued that service had to be effected in accordance with civil procedure convention set down in the Treaty of Judicial Assistance in Civil and Commercial matters between the Republic of Singapore and the People’s Republic of China (“the Treaty”), because the Treaty was applicable to Hong Kong as well.

The respondents responded by producing a letter from the Ministry of Foreign Affairs (“MFA letter”) and argued that it was to be treated as conclusive and irrefutable evidence that the Treaty did not apply to Hong Kong. The court thus considered the justiciability of the issue of whether or not the Treaty applied to Hong Kong, and hence whether the court could depart from the views of the executive branch.

Application of the principles

It was clarified that the issue involved the interpretation of a treaty in light of some international instruments, and did not involve a determination of whether making the Treaty was advisable or the recognition of Hong Kong as part of China.

The present issue was distinguished from cases cited by the appellants’ counsel regarding the exercise of sovereign or legislative prerogative in matters of “high policy”. Issues implicating the exercise of executive prerogative power are to be distinguished from issues that did not: the present case was concerned with the effect, and not the making, of the Treaty. Thus, the MFA letter was not an exercise of executive prerogative powers, but merely a statement of opinion.

The rule in CND with regard to the non-justiciability of interpretation of international documents operating purely on the international plane and foreign policy considerations were not applicable here. The appeal did not engage foreign policy considerations. It was a civil convention between two countries and an agreement to render mutual judicial assistance, and had nothing to do with foreign affairs other than that it was made between state parties.

The appeal also did not involve the policing of government conduct in international affairs. The principle stated by Simon Brown LJ in CND with regard to the interpretation of international documents operating purely on the international plane was concerned with the policing of government conduct in international affairs, but the present case only implicated the procedures private litigants had to take to serve writs to defendants residing in Hong Kong.

Furthermore, in interpreting the Treaty, the court was only to determine the domestic legal obligations of the respondents seeking to serve a write out of jurisdiction. Thus, the issue of whether or not the Treaty applied to Hong Kong was justiciable, and the MFA letter was not decisive on the matter.

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