Publication Type

Journal Article

Version

acceptedVersion

Publication Date

7-2021

Abstract

The Singapore courts often state that judicial review of executive decision-making ought only to involve an inquiry into the ‘legality’ of a decision or the ‘decision-making process’, and not the ‘decision itself’ or its ‘merits’ – let us call this the ‘Distinction’. This paper argues that the Distinction should be expunged from Singapore law. The Distinction has its roots in English case law which aimed to prevent the courts from arbitrarily substituting their decision for the executive’s by reason of mere disagreement. But Singapore case law has gone further and treated the Distinction as a general principle applicable to all of administrative law. However, the Distinction is too vague for this purpose (as seen from Singapore cases which have interpreted the distinction inconsistently). It is conceptually problematic, incompatible with the practicalities of judicial review (particularly substantive review as recognised in Singapore law), and has occasionally been paid lip service but not followed in substance. The Distinction cannot form a coherent principle to guide the courts and ought to be replaced by a more nuanced application of constitutional principles relevant to determining the appropriate scope of review. Whatever these principles may be, and however they are to be balanced, the Distinction can be but an over-inclusive rough approximation of them which hampers the development of the law.

Keywords

administrative law, judicial review, Singapore, substantive review, merits review

Discipline

Administrative Law | Asian Studies

Research Areas

Public Interest Law, Community and Social Justice

Publication

Asian Journal of Comparative Law

Volume

16

Issue

1

First Page

1

Last Page

32

ISSN

2194-6078

Identifier

10.1017/asjcl.2021.10

Publisher

Berkeley Electronic Press

Copyright Owner and License

Authors

Additional URL

https://doi.org/10.1017/asjcl.2021.10

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