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The Unmeritorious ‘Legality’/‘Merits’ Distinction in Singapore Administrative Law

Published online by Cambridge University Press:  24 August 2021

Benjamin Joshua Ong*
Affiliation:
Yong Pung How School of Law, Singapore Management University, Singapore
*
Corresponding author. E-mail: benjaminjong@smu.edu.sg
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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 article 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 recognized 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.

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Article
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press on behalf of the National University of Singapore

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References

1 Lines International Holding (S) Pte Ltd v Singapore Tourist Promotion Board [1997] SGHC 6, [1997] 1 SLR(R) 52 para 56.

2 SGB Starkstrom Pte Ltd v Commissioner for Labour [2016] SGCA 27, [2016] 3 SLR 598 para 56 (emphasis in original).

3 Borissik Svetlana v Urban Redevelopment Authority [2009] SGHC 154, [2009] 4 SLR(R) 92 para 42.

4 Lines (n 1) [56]; Wong Keng Leong Rayney v Law Society of Singapore [2006] SGHC 179, [2006] 4 SLR(R) 934 para 79; Lim Mey Lee Susan v Singapore Medical Council [2011] SGHC 133, [2011] 4 SLR 156 para 6; SGB Starkstrom (n 2) para 56; ACC v Comptroller of Income Tax [2009] SGHC 211, [2010] 1 SLR 273 para 21; Loh Der Ming Andrew v Law Society of Singapore [2017] SGHC 256, [2018] 3 SLR 837 para 82; Borissik (n 3) para 42; Re Shankar Alan s/o Anant Kulkarni [2006] SGHC 194, [2007] 1 SLR(R) 85 para 34; Mohan Singh v Attorney-General [1987] SGHC 31, [1987] SLR(R) 428 (HC) para 30; Re Mohamed Saleem Ismail [1987] SGHC 27, [1987] SLR(R) 380 para 9; Chee Siok Chin v Minister for Home Affairs [2005] SGHC 216, [2006] 1 SLR(R) 582 para 93.

5 Chan Hiang Leng Colin v Minister for Information and the Arts [1996] SGCA 7, [1996] 1 SLR(R) 294 paras 38, 44.

6 ACC (n 4) para 22.

7 SGB Starkstrom (n 2) paras 60–61.

8 Thio Li-ann, ‘The Theory and Practice of Judicial Review of Administrative Action in Singapore: Trends and Perspectives’, in Yeo Tiong Min, Hans Tjio & Tang Hang Wu (gen eds), SAL [Singapore Academy of Law] Conference 2011: Developments in Singapore Law between 2006 and 2010 – Trends and Perspectives (Academy Publishing 2011) [56].

9 Neo, Jaclyn, ‘“All Power has Legal Limits”: The Principle of Legality as a Constitutional Principle of Judicial Review’ (2017) 29 Singapore Academy of Law Journal 667Google Scholar [53]. By ‘the principle of legality’, Associate Professor Neo refers to the statement in Chng Suan Tze v Minister for Home Affairs [1988] SGCA 16, [1988] 2 SLR(R) 525 para 86 (‘Chng Suan Tze”’): ‘… the notion of a subjective or unfettered discretion is contrary to the rule of law. All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power.’

10 Neo, ibid [20] and [22], commenting on Yong Vui Kong v Attorney-General [2011] SGCA 9, [2011] 2 SLR 1189.

11 Swati Jhaveri, ‘Revisiting Taxonomies and Truisms in Administrative Law in Singapore’ [2019] Singapore Journal of Legal Studies 351, 352.

12 ibid 353.

13 ibid 356.

14 ibid 375.

15 ibid 374.

16 Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 (UKHL) 410D (‘GCHQ’).

17 Jhaveri (n 11) 353.

18 ibid 354.

19 ibid 362.

20 ibid 355.

21 ibid 376; see also 375 (‘none of the proposals above … requires … a reliance on the legality/merits dichotomy’).

22 Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155 (UKHL).

23 Evans (UKHL) (n 22) 1174G.

24 ibid 1174G–1175A.

25 One may trace the importation of the Distinction into Singapore law to as early as 1982, albeit somewhat speculatively. The first time a Singapore courts appears to have explicitly invoked the Distinction was in the 1982 Court of Appeal case of Abdul Raub v Attorney-General [1982] SGCA 14, [1981–1982] SLR(R) 625 para 8: ‘The remedy of judicial review was concerned not with the decision [on] which review was sought but with the decision-making process.’ While the Court of Appeal did not cite any authority for this point, one may speculate that the Court of Appeal took inspiration from the House of Lords decision in Evans, handed down less than two months before the decision in Abdul Raub.

26 Evans (UKHL) (n 22) 1170H–1171A.

27 ibid 1161C.

28 ibid 1164H–1165A.

29 R v Chief Constable of the North Wales Police, ex parte Evans (EWCA, 21 December 1981) (accessible through Lexis Advance at [1981] Lexis Citation 1551).

30 Evans (EWCA) (n 29).

31 Evans (UKHL) (n 22) 1174G.

32 Evans (EWCA) (n 29).

33 Evans (UKHL) (n 22) 1173F.

34 Ridge v Baldwin [1964] AC 40 (UKHL).

35 ibid 97.

36 ibid 96 (emphasis added).

37 ibid 96.

38 Evans (EWCA) (n 29).

39 Ridge (n 34) 65.

40 ibid 66.

41 Evans (EWCA) (n 29) (emphasis added).

42 Evans (UKHL) (n 22) 1173D.

43 ibid 1174G.

44 ibid 1174G–1175B (emphasis added).

45 Evans (EWCA) (n 29).

46 ibid.

47 The Singapore courts have cited Evans in no fewer than six cases: De Souza Kevin Desmond v Minister for Home Affairs [1988] SGHC 46, [1988] 1 SLR(R) 464 para 19; Re Dow Jones Publishing (Asia) Inc's Application [1988] SGHC 41, [1988] 1 SLR(R) 418 paras 21–22; Borissik (n 3) para 42; Mohan Singh (n 4); Mohamed Saleem Ismail (n 4); Shankar Alan (n 4).

48 Borissik (n 3) para 42.

49 Evans (UKHL) (n 22) 1175A.

50 Shankar Alan (n 4) para 34, citing Re Singh Kalpanath [1992] SGHC 64, [1992] 1 SLR(R) 595 para 26.

51 ibid para 30.

52 ibid para 39.

53 ibid para 39.

54 Constitution of the Republic of Singapore, art 134(3) (quoted in Mohan Singh (n 4) para 20).

55 Mohan Singh (n 4) paras 29–30 (emphasis added).

56 ibid para 3.

57 ibid para 11.

58 It cannot be said that the High Court's reason for doing so was that that question was a question of precedent fact. The constitutional provision in question (reproduced ibid para 20) read ‘If the Government is satisfied that any citizen of Singapore … has … voluntarily claimed and exercised any rights available to him under the law of … any other country…’ – so the precedent fact requirement was simply the Government being satisfied.

59 Shankar Alan (n 4) para 39.

60 Mohamed Saleem Ismail (n 4).

61 The ‘second ground’ was, in essence, that statute required that a person who was not been pronounced a member of the ‘prohibited classes’ of immigrants or an ‘undesirable immigrant’ was automatically entitled to a social visit pass.

62 Mohamed Saleem Ismail (n 4) para 3.

63 ibid para 7.

64 ibid para 10.

65 ibid paras 7, 9.

66 For example, paragraph 7 strangely suggests that judicial review does not involve ‘reviewing’.

67 See discussion below, under the sub-heading ‘“Merits” as weight’.

68 Tan Seet Eng v Attorney-General [2015] SGHC 59, [2016] 1 SLR 779 para 80.

69 ibid [80] (emphasis added).

70 SGB Starkstrom (n 2) para 56 (emphasis in original).

71 Tan Seet Eng (n 68) para 99 (emphasis added).

72 ibid para 99.

73 ibid para 99.

74 Wong, Garreth, ‘Towards the nutcracker principle: reconsidering the objections to proportionality’ [2000] Public Law 92, 102Google Scholar. See further Craig, Paul, ‘The Nature of Reasonableness Review’ (2013) 66 Current Legal Problems 131, 140142CrossRefGoogle Scholar, on possible confusion over the term ‘substitution’.

75 Jhaveri (n 11) 355. See also Mark Aronson, Matthew Groves, & Greg Weeks, Judicial Review of Administrative Action and Government Liability (6th edn, Thomson Reuters 2016) 263 for a list of judicial authorities to this effect. Note, in particular, R (Lord Carlile of Berriew) v Secretary of State for the Home Department [2014] UKSC 60, [2015] AC 945 para 60; and Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388.

76 Ho Paul v Singapore Medical Council [2008] SGHC 9; [2008] 2 SLR(R) 780 (HC) para 9.

77 Leong Kum Fatt v AG [1985] SGCA 6; [1985–1986] SLR(R) 165.

78 Leong Kum Fatt v AG [1984] SGHC 9; [1983–1984] SLR(R) 357 para 13.

79 Greyhound Racing Authority (n 75) para 46.

80 SGB Starkstrom (n 2) para 56 (emphasis in original omitted).

81 ibid.

82 Rayney Wong (n 4) para 79.

83 Shankar Alan (n 4) para 39.

84 That said, even this reading is not unproblematic. In the case of upholding a promise that created a substantive legitimate expectation, the court would not be substituting its decision for the executive's; it would merely be substituting the executive's former decision from the executive's subsequent one.

85 AXY v Comptroller of Income Tax [2018] SGCA 23, [2018] 1 SLR 1069 para 46.

86 CBB v Law Society of Singapore [2019] SGHC 293 para 65.

87 Pannir Selvam a/l Pranthaman v Attorney-General [2020] SGHC 80 para 53 (emphasis in original). This case involved an application for judicial review of a decision by the Public Prosecutor.

88 Tan Seet Eng (n 68) para 80.

89 See, for example, the (dissenting) judgment of Bokhary PJ in the Hong Kong case of Ng Siu Tung v The Director of Immigration [2002] HKCFA 6, (2002) 5 HKCFAR 1 para 337: even if one claims to be entitled to have a legitimate expectation of being heard enforced, ‘even then the ultimate objective would still be substantive. An opportunity to be heard is only a means of attaining that objective…’

90 Management Corporation Strata Title Plan No 301 v Lee Tat Development Pte Ltd [2010] SGCA 39, [2011] 1 SLR 998 para 59.

91 Lines (n 1) para 56.

92 Tan Eng Hong v Attorney-General [2012] SGCA 45, [2012] 4 SLR 476 para 69.

93 Vellama d/o Marie Muthu v Attorney-General [2012] SGHC 74, [2012] 2 SLR 1033 para 29 read with para 8.

94 Vellama d/o Marie Muthu v Attorney-General [2012] SGHC 155, [2012] 4 SLR 698.

95 Vellama d/o Marie Muthu v Attorney-General [2013] SGCA 39, [2013] 4 SLR 1 para 37.

96 I am grateful to an anonymous reviewer for the point that, in Vellama and various other cases, the courts have dismissed an application for judicial review for want of standing and yet proceeded to issue extensive dicta on the merits of the case (Vellama is particularly noteworthy in this regard, since the dicta effectively meant that the applicant would have succeeded on the merits had she had standing). Nonetheless, the existence of such dicta is not guaranteed; the courts remain entitled to dismiss an application for want of standing without saying anything at all about its merits (though see Benjamin Joshua Ong, ‘Standing Up for Your Rights: A Review of the Law of Standing in Judicial Review in Singapore’ [2019] Singapore Journal of Legal Studies 316). Moreover, even if such dicta are issued, the law considers the applicant as having failed (which we see from the fact that the applicant may be required to pay the respondent's costs).

97 Manjit Singh s/o Kirpal Singh v Attorney-General [2013] SGCA 22, [2013] 2 SLR 844 para 53.

98 ibid para 53 (emphasis added).

99 Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 (EWCA) 230.

100 See, for example, Lines (n 1) para 78; Chee Siok Chin (n 4) paras 94, 105; Tan Seet Eng (n 68) paras 77–81; Colin Chan (CA) (n 5) para 39, para 44; Vijaya Kumar s/o Rajendran v Attorney-General [2015] SGHC 244 paras 42 and 48; Chng Suan Tze v Minister for Home Affairs (n 9) para 119; Mir Hassan bin Abdul Rahman v Attorney-General [2008] SGHC 147, [2009] 1 SLR(R) 134 para 21.

101 GCHQ (n 16) 410G.

102 John Caldwell, ‘Judicial review: Review of the merits?’ [1995] New Zealand Law Journal 343, 343.

103 Paul Daly, ‘Wednesbury's reason and structure’ [2011] Public Law 238, 258.

104 Wong (n 74) 102.

105 Harman v Butt [1944] KB 491 (EWHC).

106 Wednesbury (n 99) 231.

107 Harman (n 105) 500.

108 ibid 500.

109 ibid 500–501.

110 Wednesbury (n 99) 229 (emphasis added).

111 R v Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696 (UKHL) 765E.

112 GCHQ (n 16) 410H–411A.

113 Tan, Daniel, ‘An Analysis of Substantive Review in Singaporean Administrative Law’ (2013) 25 Singapore Academy of Law Journal 296Google Scholar paras 33–44.

114 In Deepak Sharma v Law Society of Singapore [2016] SGHC 105, [2016] 4 SLR 192 para 138 and Attorney-General v Venice-Simplon Orient Express Inc Ltd [1995] SGCA 28, [1995] 1 SLR(R) 533 para 10, GCHQ was cited for the proposition just stated.

115 Tan Seet Eng (n 68) para 80.

116 Wednesbury (n 99) 229.

117 Tan Seet Eng (n 68) para 1; Attorney-General (NSW) v Quin [1990] HCA 21, (1990) 170 CLR 1, 35–36 (Brennan J): ‘The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power.’ There may be debates about what the source of these limits is (viz whether the limits are a matter of implied legislative intention or a creation of the common law (see, for example, Mark Elliott, The Constitutional Foundations of Judicial Review (Hart Publishing 2001), and, in the Singapore context, Kenny Chng, ‘The Theoretical Foundations of Judicial Review in Singapore’ [2019] Singapore Journal of Legal Studies 294), but this does not change the courts’ role in enforcing those limits.

118 Jeffrey Jowell and Anthony Lester, ‘Beyond Wednesbury: substantive principles of administrative law’ [1987] Public Law 368, 371–372 (emphasis in original): ‘The incantation of the word “unreasonable” simply does not provide sufficient justification for judicial intervention. Intellectual honesty requires a further and better explanation as to why the act is unreasonable.’

119 Tan Seet Eng (n 68) para 80.

120 Tan (n 113) para 59; see also para 61.

121 ibid para 60.

122 Tan Seet Eng (n 68) para 77.

123 ibid para 80 (emphasis in original).

124 See the sources cited at n 75 above.

125 Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 (UKHL) 780H; see also Goodwin, James, ‘The last defence of Wednesbury [2012] Public Law 445, 449, 453–454Google Scholar, and 459.

126 Craig (n 74).

127 ibid 135.

128 ibid 136.

129 If it were not, then ‘substantive reasonableness review would not exist’: Craig (n 74) 149.

130 Short v Poole Corporation [1926] 1 Ch 66 (EWCA) 91.

131 ibid 91.

132 Wednesbury (n 99) 229.

133 Short (n 130) 82.

134 See Craig, Paul, ‘Proportionality, Rationality and Review’ [2010] New Zealand Law Review 265, 278Google Scholar; Craig (n 74) 140 (fn 35). Professor Craig's point is a slightly different one, namely, that the same example can be analyzed either as one involving irrelevant considerations having been taken into account (‘the natural colour of a person's hair could never be a relevant consideration in hiring or firing a teacher’) or one which is irrational in that, although ‘physical characteristics could be relevant in hiring or dismissing a teacher’, undue weight has been given to such physical characteristics.

135 Brind (n 111) 758A; Rayney Wong (n 4) para 79; SGB Starkstrom (n 2) para 56.

136 Peter Cane, Administrative Law (5th edn, Oxford University Press 2011) 248–249.

137 ibid 249.

138 Wong (n 74) 102 (emphasis in original). Here, ‘substitution’ evidently refers to ‘the reviewing court … decid[ing] the case de novo as if it has been the primary decision-maker’: Craig (n 74) 141; see 140–142 for commentary on possible confusion over the term ‘substitution’.

139 Indeed, Jhaveri (n 11) 357 adds that even rules cast in terms of ‘error of law’ can ‘blu[r] the divide between legality and merits’, in that such rules can in effect require that ‘the decision-maker [not] reac[h] the ‘wrong’ decision under the statute’.

140 See section IV.A above.

141 Tan Seet Eng (n 68) para 47.

142 Neo (n 9) paras 33–37 points out that Tan Seet Eng (n 68) cited the ‘principle of legality’ as grounds not only for justifying judicial review at all, but also for setting the standard of review at a certain level. In so doing, Tan Seet Eng followed Chng Suan Tze (n 9). I am grateful to an anonymous reviewer for this point.

143 Tan Seet Eng (n 68) para 97. An example of a ‘clerical’ role would be the court merely ‘verifying … that the paperwork was in order’ and, in a case where a Minister had the power to order that a person be detained in certain circumstances laid down by statute, verifying that the detention order ‘included at least a bare recitation by or on behalf of the Minister that formally complied with the statutory formula’: ibid. One case in which a decision was held unlawful on ‘clerical’ grounds is Chng Suan Tze (n 9): a statute provided that a person may be detained ‘if the President is satisfied’ that it was necessary to do so to prevent him from acting in a manner prejudicial to national security; the Court of Appeal ordered that several detainees be freed because there was no admissible evidence that the President was so satisfied (see paras 29–41).

144 Chng Suan Tze (n 9) para 82.

145 Jacob v Attorney-General [1970] SGHC 7, [1968–1970] SLR(R) 694.

146 ibid para 2.

147 ibid para 10(b).

148 ibid para 11.

149 Chang Song Liang v Attorney-General [1980] SGHC 2, [1971–1980] SLR(R) 379.

150 ibid para 11.

151 Wong Kim Sang v Attorney-General [1982] SGHC 1, [1981–1982] SLR(R) 295.

152 ibid para 34, citing Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (UKHL) 195.

153 ibid para 34(b).

154 ibid para 35.

155 ibid para 36.

156 Re Fong Thin Choo [1991] SGHC 54, [1991] 1 SLR(R) 774 (HC).

157 ibid paras 4–7.

158 ibid para 22, quoting the Customs Regulations 1979 (GN No S 261/1979), reg 12(6).

159 ibid para 25.

160 ibid para 33.

161 ibid para 33.

162 ibid para 33.

163 ibid para 35.

164 ibid paras 36–48. Jhaveri (n 11) 365 describes this as a ‘fairly involved review’ that was in substance ‘similar to the nature of review carried out with precedent fact review, hemming closely to the merits of decision-making’.

165 Fong Thin Choo (n 156) para 51.

166 ibid para 54.

167 ibid para 54 (emphasis removed).

168 ibid para 53.

169 ibid para 53.

170 Tesco Stores (n 125) 780H.

171 In fact, the High Court (n 156) went so far as to suggest that the decision must be correct as of the time of the hearing, and not merely that it must have been correct at the time it was made. We see this from the fact that the High Court made its decision ‘assuming that the court is not entitled to have regard to the applicants’ evidence produced after December 1988’ (which was the time the respondent made its decision) (at para 51), and remarked that ‘the applicants have now produced ample evidence of export which has never been investigated by [the DG]’ (at para 50; emphasis added).

172 Tesco Stores (n 125) 780H.

173 See Re Yap Lack Tee George [1991] SGHC 96, [1991] 2 SLR(R) 203 paras 19–20; Kamal Jit Singh v Minister for Home Affairs [1992] SGCA 72, [1992] 3 SLR(R) 352 para 33.

174 Ng Hock Guan v Attorney-General [2003] SGHC 284, [2004] 1 SLR(R) 415.

175 ibid paras 14–15.

176 ibid paras 79–80.

177 ibid 61.

178 ibid para 64.

179 ibid para 63: ‘I have summarized with care the relevant evidence given by each of them.’

180 ibid para 35.

181 Attorney-General v Ng Hock Guan [2004] SGCA 21, [2004] 3 SLR(R) 253.

182 ibid para 38.

183 ibid para 7.

184 Tan Gek Neo Jessie v Minister for Finance [1991] SGHC 1, [1991] 1 SLR(R) 1 para 13.

185 ibid para 23.

186 ibid para 25 read with para 24.

187 ibid para 19.

188 ibid para 19.

189 Lines (n 1).

190 ibid para 84. On this basis, the figure of 30% corresponded to a ratio of two destination cruises to one ‘cruise to nowhere’ per week.

191 ibid para 85. This basis involved considering the ratio of the number of days spent by a ship on destination cruises to the number of days spent by that same ship on ‘cruises to nowhere’.

192 ibid para 85.

193 ibid para 85.

194 ibid para 56.

195 Jhaveri (n 11) 354 (internal footnotes omitted).

196 ibid.

197 ibid.

198 SGB Starkstrom (n 2) para 58 (emphasis in original).

199 Jhaveri (n 11) 375.

200 ibid 376.

201 Several possibilities are set out in the following sources. Jeffrey Jowell has gleaned various criteria for substantive review from the case law, such as a ‘lack of reasoning’ and an ‘[u]nduly [o]nerous or [o]ppresive’ consequence: Jeffrey Jowell, ‘Proportionality and Unreasonableness: Neither Merger nor Takeover’ in Hanna Wilberg & Mark Elliott (eds), The Scope and Intensity of Substantive Review: Traversing Taggart's Rainbow (Hart Publishing 2015) 49–53. Similarly, Paul Daly has identified various ‘“indicia’ of unreasonableness’ shown by decisions which the courts have quashed for being unreasonable, such as ‘illogicality’ and ‘disproportionality’: Paul Daly, ‘Wednesbury's reason and structure’ [2011] Public Law 238. James McLachlan, too, goes further in considering that neither the ‘concepts of justiciability … insubstantial error and self-restraint’ nor the ‘concept of reasonableness’ suffice to provide an account of the proper scope of judicial review; he calls for the ‘formulation of substantive principles of review which delimit the scope of review’ (James McLachlan, ‘Substantive Fairness: Elephantine Review or a Guiding Concept?’ (1991) 2 Public Law Review 12, 21–22), such as consistency, proportionality, and non-arbitrariness (James McLachlan, ‘Substantive Fairness: Elephantine Review or a Guiding Concept? Part II’ (1991) 2 Public Law Review 109). Even if these principles are themselves open-ended and/or vague, surely they are more concrete than a bare appeal to the notion that a decision must be ‘reasonable’ or ‘rational’.

202 See Tan Seet Eng (n 68) para 95.

203 Chan Hiang Leng Colin v Public Prosecutor [1994] 3 SLR(R) 209 (HC) para 68.

204 Tan Seet Eng (n 68) para 95.

205 [2019] 2 SLR 216 (CA).

206 Misuse of Drugs Act (Cap 185, 2008 Rev Ed), s 33B(2)(a).

207 ibid s 33B(2)(b).

208 Nagaenthran (n 205) para 43.

209 ibid para 67. For commentary, see Kenny Chng, ‘Reconsidering ouster clauses in Singapore administrative law’ (2020) 136 Law Quarterly Review 40.

210 ibid para 51 (emphasis in original).

211 ibid para 59.

212 ibid para 60.

213 ibid para 58.

214 Jhaveri (n 11) 375.

215 AXY (n 85) paras 46, 78. Note the view of Jhaveri, ibid, that this case displays a ‘burgeoning version of [review for] errors of fact’ (375) that is in substance ‘a review squarely of the merits of the executive's decision’ (367).

216 CBB (n 86) para 65.

217 Pannir Selvam (n 87) para 53 (emphasis in original).

218 See generally Jhaveri (n 11).

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