Question: Explain the concept of Separation of Powers in a STATE and the Concept of Judicial Review with examples of case law involving Ultra Vires and Breach of Natural Justice. *NOTE: The following texts may not be correct. It is my own personal assignment. Upload this report because I want to view the full reports on studymode. com. Separation of Powers Separation of Powers refers to the idea that the state should be functioning independently and that no individual should have powers that exceed their limits. When a person or group has a large amount of power, they can become dangerous to public.
Therefore, the Separation of Power is the constitution principle that limits the powers vested in any person or institution. It divides government authority into three branches, the Legislature, the Judiciary and the Executive. All three branches are required for the making, executing, and administering of laws. Therefore, the Constitution has come out with Section 9 – (1) and Section 9 – (4) to protect the citizen. Section 9 – (1) and 9 – (4) state that even the police are not allow to arrest the citizen for more than 48 hours without bringing the citizen to the court.
In order to hold the citizen for more than 48 hours, the police will have to present evidences to prove that the citizen committed a crime. Section 9 – (2) is where if the family members of the citizen are being held by the police for more than 48 hours without any sufficient evidences, the family members can hire a lawyer to file a complaint to the high court. However, according to Section 6, 1. 6. 4, for the Executive and Legislature, there is no complete separation of powers. Section 6, 1. 6. 4, states: 1. 6. 4 There is no complete separation of powers between the Executive and Legislature.
In terms of composition, the Ministers from the Cabinet are drawn from the MPs. Parliamentary Secretaries are further appointed from amongst the MPs to assist the Ministers. Moreover, the Ministers and the relevant government agencies are responsible for enacting subsidiary legislation to supplement the parent legislation passed by the Parliament. Three Separate Arms of the State A properly constructed Constitution limits the power of a government by specifying which actions they are allowed to take, and not allowed all others.
As mention, to prevent arbitrary governance and to protect individual freedoms of speech and equal rights, the Constitution consists of three separate branches of government, The Legislature, the Judiciary and the Executive. Firstly, The Legislative comprises both the government and the Parliament of Singapore. The legislature authority is responsible for looking after the law and order in the country. The Legislative branch also makes laws. For example, when the government legal officers begin with a Bill, normally drafted a law, the parliament will debates whether this law (Bill) is favorable or needed any amendments.
The Members of Parliament (MPs) may, in some cases, decided to refer the Bill to a Select Committee to deliberate upon and submit a report to the Parliament. When the Parliament approved the law, the Constitution tasked is to scrutinize the draft to ensure that the law is fair to the citizens and do not benefits only to a certain group of citizens. Secondly, the Judiciary branch oversees the court system. It will explain the meaning of the Constitution and laws passed by the Legislative and also responsible for the development of the common law.
Under Article 93 of the Constitution of the Republic of Singapore, the Judiciary power in Singapore is vested in the Supreme Court (comprising the Singapore Court of Appeal and High Court) as well as the Subordinate Courts. (Section 7, 1. 7. 2) The Supreme Court is the highest court, its decisions are final and no other court can overrule those decisions. It is made of the Court of Appeal and the High Court, and hears both civil and criminal matters. The Court of Appeal is the highest court of the land is the permanent Court
of Appeal which hears both civil and criminal appeals emanating from the High Court and the Subordinate Courts. The High Court Judges enjoy security of tenure whilst the Judicial Commissioners are appointed on a short-term contract basis. Both, however, enjoy the same judicial powers and immunities. Their judicial powers comprise both original and appellate jurisdiction over both civil and criminal matters. Some of the High Court judges are specially designated to hear cases in specific legal areas such as arbitration admiralty and intellectual property. (1. 7. 4) Lastly, the head of the Executive branch is the President.
The President is elected by the entire country and it will approves and carriers out laws passed by the legislative branch. He will appoints or removes the cabinet members (Prime Ministers). The Presidential Elections Committee has been set up to ensure the requirements are adhered to. The Elected President’s term of office is 6 years. He or she shall act in accordance with the advice of the Cabinet in discharging the Elected President’s constitutional functions except in specified areas. The Cabinet, under the helm of the Prime Minister, is collectively responsible to the Parliament.
The Prime Minister is appointed by the Elected President from among the Members of Parliament who, in the Elected President’s judgment, is likely to command the confidence of the majority of the Members of Parliament. The other Ministers in the Cabinet are appointed from among the Members of Parliament by the Elected President on the advice of the Prime Minister. Concept of Judicial Review Judicial Review is a legal procedure which allows the Administrative Court to examine the lawfulness of actions by a public body is legal validity.
The judiciary’s role is to ensure that the intention of the Parliament as reflected in the Constitution and other legislation is adhered to. For example, the government made a decision that affects the running of the business, company may subject to judicial review to decide if the decision made is legal. Concept of Natural Justice Natural Justice is based on two important rules. Firstly, Audi alteram partem, Latin for hear the other side, which mean no accused, or a person directly affected by a decision shall be condemned unless given full chance to prepare and submit his or her case and rebuttal to the opposing party’s arguments.
Secondly, nemo judex in causa sua, Latin for no man a judge in his own case. Which mean no decision is valid if it was influenced by any financial consideration or other interest of the decision maker. The basis for the rules is to against biasness and to maintain the public confidence in the legal system. The right to a fair hearing requires that individual should not be penalized by decisions affecting their rights unless they are given a prior notice of the case, a fair chance to answer it and the opportunity to present their own case. For example, Ridge v Baldwin (1964).
The fact is that the police authority dismissed Ridge without offering him an opportunity to defend his actions. The police authority which is led by Baldwin had acted unlawfully (ultra vires) in terminating his appointment in 1958 and following criminal proceedings against him. Ridge sought for financial reparation from the police authority and having declined to seek reappointment, he sought a reinstatement of his pension to which he would have been entitled with effect from 1960 had he not been dismissed, plus damage, or salary backdated to his dismissal.
This is where Ridge must be heard and he must know of the case against him, and he must be allowed to state his case. Concept of Ultra Vires Ultra Vires in Latin phrase means “beyond the powers”. It means that an authority cannot act beyond the powers or beyond the scope conferred upon it by the law. Any act that is exceeding the powers granted to the person is ultra vires and may be challenged in the court. For example, if a company starts to sell insurance and it is not chartered as an insurance company, the government can alleged that the company is exceeding the powers granted to it by the law.
Case Law in Singapore involving Ultra Vires One case law that the judge refers to ultra vires is the case law of Public Prosecutor v. Taw Cheng Kong. Taw Cheng Kong (Taw), is a Singapore citizen and was Asia Pacific Regional Manager of the Government of Singapore Investment Corporation Pte Litd (GIC). Taw based is at Hong Kong where he had charge of equity portfolios in Hong Kong and the Philippines, and on behalf of GIC he have the power to decide which companies to invest in.
Taw was charged with corruption in dealing with GIC and Rockefeller & co. inc.. It was alleged that Taw, at the instigation of Kevin Lee (Lee), managing director of Rockefeller’s Far East operations, had purchased by GIC of the Pioneer Hong Kong Fund, which was managed by Rockefeller. For each transaction, Lee was alleged to have paid Taw a sum of money. Taw was alleged to have accepted “incentive fees” from Lee. Taw was tried and convicted in section 37(1) of the Prevention of Corruption Act (PCA). Section 37(1) of the PCA states:
The provisions of this Act have effect, in relation to citizens of Singapore, outside as well as within Singapore; and where an offence under the Act was committed by a citizen of Singapore in any place outside Singapore, that person could be dealt with in respect of that offence as if it had been committed in Singapore. Taw appealed to the High Court against his conviction in section 37(1) was unconstitutional and secondly that it’s representing ultra vires the legislative power of the Parliament and lastly there was insufficient evidence for a conviction under the charges for corruption.
Firstly, Taw argued that 37 (1) is ultra vires as the Parliament shouldn’t have the power to also capture corrupted acts by Singapore citizens outside of Singapore. However, as the plenary legislative powers of the Parliament were sufficient to grant extraterritorial legislative powers to the Parliament, the court declined to pronounce whether 37 (1) as an empowering provision. The extraterritorial provision in section 37(1) of the PCA was therefore not ultra vires the powers of the legislature. It was valid so long as it did not offend the Constitution.
Secondly, Taw further mention that should 37 (1) extend to non – citizens as well so there would have no constitutional objection on the ground of discrimination against Singapore citizens and hence inconsistent with Article 12 (1) of the Constitution. Article 12 (1) of the Constitution of the Republic of Singapore states: All persons are equal before the law and entitled to the equal protection of the law. In construing the concept of equality in Article 12, the Court held that equality does not mean that all persons are to be treated equally, but simply that all persons in like situations will be treated alike.
Ultimately the Court of Appeal found that section 37 (1) of the PCA did not offend Article 12(1). However, having given full consideration to the two questions posed by the Attorney General, the answers to them must be `no` and `no` again – section 37 (1) of the PCA was not ultra vires the powers of the legislation. Section 37 (1) was not inconsistent with art 12(1) of the Constitution. Case Law in Singapore involving Natural Justice One case law that the judge refers to natural justice is the case law of Dr Lim May Lee Susan v The Singapore Medical Council (“SMC”).
Ministry of Health, Singapore (“MOHS”) filed a complaint (“the Complaint”) to SMC, in which Lim was accused of overcharging one of her patients. The patient was a Brunei royal family member. MOH began a probe to determine whether Lim’s bills showed a pattern of overcharging, improper billing and whether some fees were inappropriate. A panel appointed by the medical council to hold the inquiry stepped down after Lim complained the members had prejudged her case. A complaints committee (“the Complaints Committee”) reviewed the Complaint and ordered that a formal inquiry should be held by a disciplinary committee (“the 1st DC”).
The 1st DC commenced its hearings on the Applicant’s submission of no case to answer. It appeared from the transcript of that hearing that the Applicant counsel had applied to the 1st DC for it recuse itself and after some discussion the 1st DC decided to rescue itself. On 3 September 2010, an official from the SMC sent an e-mail to all SMC members (“the 3 September 2010 E-mail”). The 3 September 2010 E-mail explained that the 1st DC had recused itself and that it was necessary for the SMC to revoke the appointment of the 1st DC and appoint a new disciplinary committee (“the 2nd DC”).
No objections were raised by the due date and the SMC thus decided on 7 September 2010 to revoke the appointment of the 1st DC. On 13 September 2010, the SMC sent another e-mail to all SMC members (“the 13 September 2010 E-mail”) on the proposed composition of the 2nd DC. SMC members would be assumed to have no objections if they were not heard from by 14 September 2010. No objections were raised by the due date and the SMC thus appointed the 2nd DC on 14 September 2010. She requested for a fair hearing and a second panel is now pursuing the investigation.
Dr Lim then applied to Court for the following judicial review remedies: (i) a quashing order against the SMC’s decision to appoint the 2nd DC; (ii) a prohibiting order to prohibit the SMC from taking steps to bring disciplinary proceedings against the Applicant on the same subject matter covered in the charges set out in the notice of inquiry issued by the 1st DC; and (iii) a declaration to declare that the Medical Registration (Amendment) Regulations 2010 (S 528/2010) (“the S 528/2010 Amendment Regulations”) were void.
Dr Lim seeks to quash the SMC’s decision to refer the Complaint to the 2nd DC for a hearing and investigation and to prohibit the SMC from any further referral of the same Complaint to any disciplinary committee in future. In order to achieve this, it is necessary in law for Dr Lim to establish that the SMC decision to refer the Complaint to the 2nd DC was illegal or biased as alleged. Illegality means that Dr Lim had to show that the reference was illegal under the MRA.
The MRA does however empower the SMC to appoint the 2nd DC upon the revocation of the entire 1st DC’s appointment. The SMC is also entitled under s 12 of the MRA to determine its own procedures for the conduct of its business whether in physical meetings or otherwise and accordingly its unanimous decision upon an e-mail is in order. As for bias, it is necessary for the Applicant to establish actual bias on the part of the SMC. The Applicant makes no allegation and there is nothing on the record to show personal bias or animus or abuse of position on the part of any SMC member.
The Applicant invites the court to infer actual bias from no facts. The Applicant’s case for reasonable apprehension of bias is based again not on any specific person or conduct but on an aggregation of circumstances. Dr Lim applications are dismissed and she will have another day in the court, apart from any appeal from the judge’s judgment. Dr Lim should seek judicial review of the 2nd DC findings and decision, this is to ensure that she have a fair hearing. References • Jeff Landauer and Joseph Rowlands.
2001. Separation of Powers. http://www. importanceofphilosophy. com/Politics_SeparationPower. html • Fact Monster, Pearson Education. 2008. Three Branches of Government. http://www. factmonster. com/ipka/A0774837. html • Wikipedia. 30 March 2013, 07. 55. Separation of Powers. http://en. wikipedia. org/wiki/Separation_of_powers#Three_branches • Eugene Tan and Gary Chan. 25 September 2007. Section 7, the Judiciary (1. 7. 2). http://www. singaporelaw. sg/content/LegalSyst. html • Wikipedia.
27 February 2013. Ultra Vires. http://en. wikipedia. org/wiki/Ultra_vires • Statues, Constitution of the Republic of Singapore. Section 9, Liberty of the person. http://statutes. agc. gov. sg/aol/search/display/view. w3p;ident=1c961483-74d1-41ab-927f-9e4295c1a997;page=0;query=Status%3Acurinforce%20Type%3Aact,sl%20Content%3A%22separation%22%20Content%3A%22of%22%20Content%3A%22power%22%20MajorSubject%3A%22constitution%22;rec=1;resUrl=http%3A%2F%2Fstatutes. agc. gov. sg%2Faol%2Fsearch%2Fsummary%2Fresults.
w3p%3Bpage%3D0%3Bquery%3DStatus%253Acurinforce%2520Type%253Aact,sl%2520Content%253A%2522separation%2522%2520Content%253A%2522of%2522%2520Content%253A%2522power%2522%2520MajorSubject%253A%2522constitution%2522#pr9-he-. • Business Dictionary. 2013. Natural Justice. http://www. businessdictionary. com/definition/natural-justice. html • Wikipedia. 29 January 2012. Ridge v Baldwin, Natural Justices and Ultra Vires. http://en. wikipedia. org/wiki/Ridge_v_Baldwin • Public Prosecutor v Taw Cheng Kong. 1998 SGCA 37. http://lwb. lawnet. com. sg/legal/lgl/rss/landmark/_SGCA_37. html