Publication Type
Case note/Digest
Version
publishedVersion
Publication Date
5-2019
Abstract
Section 33B(4) of Singapore’s Misuse of Drugs Act purportedly partly ousts judicial review of the Public Prosecutor’s determination of whether a drug trafficker has substantively assisted the anti-drug enforcement agency. This paper argues that Singapore’s High Court erred in holding this provision constitutionally valid. Ouster clauses are unconstitutional vis-à-vis Articles 12(1) and 93 of the Constitution; the High Court’s view does not accord with the law on non-justiciability and is premised on a flawed theory of legislative intention. It is no answer that judicial power is subject to a ‘balance’ which renders a partial ouster clause constitutionally valid. The High Court’s view that section 33B(4) ousts review for non-jurisdictional errors of law is incompatible with Article 93, and is not justified by the ‘green-light’ theory. The effect of these problems is tempered by a potentially wider definition of unconstitutionality as a ground of review than the High Court considered. © 2019, © 2019 Faculty of Law, Oxford University.
Discipline
Dispute Resolution and Arbitration | Jurisdiction
Research Areas
Asian and Comparative Legal Systems
Publication
Oxford University Commonwealth Law Journal
Volume
19
Issue
1
First Page
157
Last Page
178
ISSN
1472-9342
Identifier
10.1080/14729342.2019.1610303
Publisher
Taylor & Francis (Routledge): SSH Titles - no Open Select
Citation
ONG, Benjamin Joshua.
The constitutionality of ouster clauses: Nagaenthran a/l K Dharmalingam v Attorney-General [2018] SGHC 112. (2019). Oxford University Commonwealth Law Journal. 19, (1), 157-178.
Available at: https://ink.library.smu.edu.sg/sol_research/2915
Creative Commons License
This work is licensed under a Creative Commons Attribution-NonCommercial-No Derivative Works 4.0 International License.
Additional URL
https://doi.org/10.1080/14729342.2019.1610303
