The constitutionality of ouster clauses: Nagaenthran a/l K Dharmalingam v Attorney-General [2018] SGHC 112
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.