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Talk:Remedies in Singapore administrative law

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This review is transcluded from Talk:Remedies in Singapore administrative law/GA1. The edit link for this section can be used to add comments to the review.

Reviewer: Mike Christie (talk · contribs) 13:51, 27 April 2014 (UTC) I will do this review; I'll add comments here as I go through the article.Reply

  • External links in the text should be removed per WP:EL.
  • As with the related articles, the reader should be informed of the basis of Singapore law in English law. A good place to mention this here might be the first paragraph of the section "Prerogative orders".
  • "An application for such leave must be made by ex parte originating summons": this is a rather technical phrase; could it be clarified?
    •   Fixed: added footnote 83 to the first occurrence of the term in the article. — SMUconlaw (talk) 15:25, 1 May 2014 (UTC)Reply
  • "While the other prerogative orders may only be applied for with the court's permission, an order for review of detention is issued by the High Court as of right": I didn't understand this, though I can guess at a likely meaning; I went looking in the body of the article for a more detailed discussion of this point but didn't find anything. I think this should be given in the body, perhaps with a little clarification.
    Reading through the article, I've now found the place in the body where this is discussed, but there's no clarification -- the same language is used as in the lead. I do think clarification is needed.
      Fixed: added some clarifying words to the main text. — SMUconlaw (talk) 15:25, 1 May 2014 (UTC)Reply
    I've simplified this further; I think there's no need for the phrase "as of right", given the explanation you've added. I made the same change in the lead. Mike Christie (talk - contribs - library) 00:32, 2 May 2014 (UTC)Reply
  • "The term remedy has two meanings. In its broad sense, it can mean a party's entire cause of action...": surely this is misphrased? A cause of action is a set of facts that legally enable a remedy, but is it really the case that in legal terminology "remedy" can refer to the cause of action?
    •   Fixed: I concur. I looked up some reference books but didn't see anything justifying this statement, so I've reworded it. — SMUconlaw (talk) 16:03, 2 May 2014 (UTC)Reply
  • The discussion of quo warranto orders is uncited; I don't think this is the sort of thing that I would require a citation for in order to pass GA, but it does seem like something for which a cite could be found.
  • "The High Court granted the application, holding that under the Legal Profession Act, the Inquiry Committee's only function was to consider the matters before it and decide whether or not there should be a formal investigation by a Disciplinary Committee." It's not clear why this is relevant -- according to the discussion of the case, the Inquiry Committee did indeed only do this.
  • Two of the block quotes in the article have embedded line breaks. I suspect these record a page break in the original source; if so they should be removed. If there's another reason, I'd be curious to know what it is.
    •   Fixed: I think you're right, and that this was inadvertent. — SMUconlaw (talk) 15:25, 1 May 2014 (UTC)Reply
  • "the Court held that an objective rather than a subjective test should apply to the exercise of discretion by the authorities": I understand what an objective test is in this case, but I'm not clear what a subjective test would be -- can you clarify?
  • The section on the procedure for prerogative orders should mention the date of the Government Proceedings Act (1985, as far as I can tell) since the given date of 7 Dec 2005 is much more surprising knowing that; if the Act had been passed earlier in 2005 it would be less remarkable. On a related point, why is the date of 7 Dec 2005 given? Presumably because a source gives that date; but can nothing be said about whether the minister has published the required list since then?
    •   Fixed: it was the date on which the case of Chee Siok Chin was decided. Added a mention of this. — SMUconlaw (talk) 15:48, 1 May 2014 (UTC)Reply
      That's good enough. I'm like to know why the list was not published, but in context it's not an important point. Mike Christie (talk - contribs - library) 10:15, 2 May 2014 (UTC)Reply
      To my knowledge, the government hasn't provided an explanation. — SMUconlaw (talk) 12:12, 2 May 2014 (UTC)Reply
  • "applies for a prerogative order by summons to the High Court in the originating summons in which leave was obtained": this is opaque to someone unfamiliar with administrative law; could it be clarified?
  • "the summons filed under Order 53, rule 2(1)": I'm not clear what this means. Order 53 has already been mentioned, but this rule has not been mentioned; and in any case I'm not clear from the discussion to this point why there are two summons -- this appears to be in the part of the process where the order has been applied for but not issued, and I don't see a reference in that discussion to two summons.
    •   Fixed: the "summons filed under Order 53, rule 2(1)" is the summons referred to in the previous sentence. I've done some rephrasing. — SMUconlaw (talk) 15:48, 1 May 2014 (UTC)Reply
  • In the paragraph beginning "The Court preferred the position taken in Gouriet, I'm afraid I don't follow the argument. Why did rule 40.20 influence the court against the position taken in Re S? Why is Order 15, rule 16 quoted as "on the other hand", when both it and rule 40.20 appear to agree that the possibility of a remedy existing has no bearing on whether the court can make a declaration?
    • The difference between rule 40.20 (UK) and O 15, r 16 (Singapore) is that the latter contains the words of right (which are italicized in the article). That explains the Singapore court's insistence that a plaintiff can only be granted a declaration if he or she "either asserts a legal right which is denied or threatened, or claims immunity from some claim of the defendant against him or claims that the defendant is infringing or threatens to infringe some public right so as to inflict special damage on the plaintiff" (quoted in the preceding paragraph). — SMUconlaw (talk) 16:19, 1 May 2014 (UTC)Reply
      I'm sorry, I'm still confused. Why does the phrase "of right" eliminate the allowability, cited for Re S, that it is "not necessary for the legal right to be vested in the parties"? If I understand the discussion, that's the key point. I take it from your comment that O 15, r 16 does exclude this possibility, but I don't understand how, because the existence of a right is required in Re S also. Mike Christie (talk - contribs - library) 22:48, 3 May 2014 (UTC)Reply
      Re-reading the relevant passages in the article, the difference is that Re S said that "so long as there existed a 'real and present dispute between the parties as to the existence or extent of a legal right' and each of the parties to the litigation 'would be affected by the determination of the issue', it was not necessary for the legal right to be vested in the parties" (Emphasis added). In contrast, due to the presence of the term of right in the Singaporean legislation, the Singapore court took the view that this more flexible position could not be adopted locally. I suppose what the court meant was that in Singapore the legal right in question must be vested in the parties, but regrettably it did not actually express the point in those terms. What it said was this (Karaha Bodas, pp. 125–126, para. 25):
      We were, however, not inclined to adopt the approach of Re S. First, CPR Part 40.20 is the rule reflecting the English court’s power to grant declaratory reliefs. This is a new rule and it replaced the old rule that was in pari materia with our O 15 r 16 ... The new CPR Part 40.20 differs from the above provision in that it does not state that a declaration has to be "of right". In Singapore, the legislation concerning the power to grant declaratory reliefs still includes the requirement that the declaration be one of right. This restriction has been taken out of the English provisions and the English courts therefore, arguably, have more wide-ranging powers than we do. When Lord Diplock made his famous pronouncement in Gouriet, the legislation in force was identical to our O 15 r 16. That same identical provision was in force (and the exact wording was set out in the judgment) when Neill LJ held in Meadows that he was bound by Lord Diplock’s holding. As a matter of construction of the court’s powers, therefore, as far as the Singapore courts are concerned, the approach of Lord Diplock is as authoritative as it ever was.
      — SMUconlaw (talk) 11:42, 4 May 2014 (UTC)Reply
      I see the difficulty. I think the wording in the article is unsatisfactory as it stands, because a reader is not easily going to follow the argument; and the argument is difficult to make explicit because the court did not make the point about the rights being vested in the parties. The article does already make it explicit that Gouriet's approach was preferred. Can the wording in the article be modified to reflect more clearly what the court said? Or would it be better to just elide these details? Mike Christie (talk - contribs - library) 18:07, 4 May 2014 (UTC)Reply
        Done: I've rephrased the text. See my comments below in response to your related question. — SMUconlaw (talk) 02:18, 21 June 2014 (UTC)Reply
  • The discussion of orders for review of detention -- in the section discussing the 1816 Act, the 1993 Application of English Law Act, and section 9(2) of the constitution -- concludes by saying only that the High Court "may" be able to apply a rule equivalent to the rule given in the 1816 Act. I'm not clear from this discussion what, exactly, authorizes the courts to continue to issue orders for review of detention, as presumably they do. It seems that this power derives from the Supreme Court of Judicature Act, but I can't tell from the article when that was passed. If that's so, and the discussion is about the rules that the High Court applies when deciding whether to issue orders for review of detention, I think that needs to be clarified.

-- Mike Christie (talk - contribs - library) 13:51, 27 April 2014 (UTC)Reply

The discussion in this section does not just deal with the power of the High Court to issue orders for review of detention (which stems from Article 9(2) of the Constitution and the Supreme Court of Judicature Act), but the extent of the inquiry that the Court is supposed to make into the legality of the detention. As the article notes, "at common law if ... the response to the writ that a person holding a detainee had to give  was valid on its face, the court could not inquire further into the matter". In Chng Suan Tze (1988), the Court of Appeal held that "section 3 of the UK Habeas Corpus Act 1816 broadened the court's power by entitling it to examine the correctness of the facts mentioned in the return". However, in 1994 Parliament enacted the Application of English Law Act which made the Habeas Corpus Act 1816 no longer applicable in Singapore. Nonetheless, the combined effect of Article 9(2) and the principle stated in Eshugbayi Eleko suggests that despite the Application of English Law Act the extent of the High Court's power is still the same as what was stated in Chng Suan Tze. — SMUconlaw (talk) 16:19, 1 May 2014 (UTC)Reply
That clears it up for me; I see also that I didn't recall that the SCJA is mentioned earlier in the article, so the source of this power is indeed covered. My remaining concern here is that the language is rather indefinite: "appears to have ceased", and "may be argued that". If those are truly just opinions, I think the source of the opinion should be given in the text; if there is consensus that this is the case, then more definite language is called for. I'd add that your comment above that "the combined effect [is that] the extent of the High Court's power is still the same..." is very helpful, and could be usefully added to the article -- it would be very helpful to the reader to have some such summary of the discussion. Mike Christie (talk - contribs - library) 23:10, 3 May 2014 (UTC)Reply
  Done: did some minor rephrasing. — SMUconlaw (talk) 02:18, 21 June 2014 (UTC)Reply
That's everything I can see. I'll place the article on hold to allow time for responses; Hildanknight already let me know that he would be away for a few days so a longer hold period than normal is fine. Mike Christie (talk - contribs - library) 10:15, 1 May 2014 (UTC)Reply
  • Adding a couple of minor points related to the discussion above of Re S and Gouriet; I think the body text should mention that Re S is a UK case, rather than relegating that fact to a footnote, because it's significant in the immediately following discussion of the difference between the relevant English and Singaporean governing rules. Also in that discussion is a mention of the Civil Procedure Rules, which according to that article date from 1999 and so postdate Re S. If that article is not inaccurate, then presumably some equivalent to 40.20 was in the predecessor to the Civil Procedure Rules, and some wording should be inserted to clarify in that case -- perhaps a footnote would suffice. Mike Christie (talk - contribs - library) 22:48, 3 May 2014 (UTC)Reply
    • You are probably right. Unfortunately, there is no explanation of this in the Singaporean Karaha Bodas case. I will have to look up the UK case of Re S. This may take a few days as I am swamped with marking. — SMUconlaw (talk) 11:42, 4 May 2014 (UTC)Reply
      • No hurry, of course. Mike Christie (talk - contribs - library) 18:07, 4 May 2014 (UTC)Reply
        •   Done: I read Re S and re-read Karaha Bodas. Re S was decided on the basis of Order 15, rule 16, of the old Rules of the Supreme Court, which were later replaced by the Civil Procedure Rules. What the Singapore court said was that some scholars had expressed the view that Re S is consistent with the current wording of the Civil Procedure Rules, whereas Singapore still retains the old Order 15, rule 16. I've rephrased the text and added references to make this clearer. (It could be argued that since Re S had already taken a liberal view of O. 15, r. 16, the Singapore court could have followed suit, but since the Singapore court didn't mention this point expressly it is speculation or original research.) — SMUconlaw (talk) 02:18, 21 June 2014 (UTC)Reply
  • I've just noticed that the lead is really too long, per WP:LEAD; it should be no more than four paragraphs. Perhaps some of the details in the lead can be cut, and two paragraphs combined? Mike Christie (talk - contribs - library) 18:07, 4 May 2014 (UTC)Reply

The most recent edits address everything except the length of the lead, which I'm going to let go because it is a long article. I'm passing this; thanks for your patience. Mike Christie (talk - contribs - library) 18:21, 21 June 2014 (UTC)Reply

@Mike Christie: Since you gave Smuconlaw close to two months to handle the issues, we should be thanking you for your patience instead! Looking forward to your review of Rule of law doctrine in Singapore! --Hildanknight (talk) 02:51, 22 June 2014 (UTC)Reply

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