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

• Main Author: ONG, Benjamin Joshua
• Format: text
• Language: English
• Published: Institutional Knowledge at Singapore Management University 2019
• Subjects: Dispute Resolution and Arbitration; Jurisdiction
• Online Access: https://ink.library.smu.edu.sg/sol_research/2915; https://ink.library.smu.edu.sg/context/sol_research/article/4873/viewcontent/The_constitutionality_of_ouster_clauses__repositories_.pdf
• Institution: Singapore Management University

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.