Justice Vincent Hoong: Speech delivered at the “Governing Global Health in Times of Pandemic” Conference

Governing Global Health in Times of Pandemic

The Role of National and International Courts in Times of Crisis: Judicial Review and the Protection of Fundamental Rights

Honourable Judges, Professors, Ladies and Gentlemen,

1. Let me begin by thanking Professor Iamiceli and Professor Cafaggi for inviting me to speak to you this afternoon. I am delighted to be here and I have very much enjoyed learning from my fellow speakers on how various governments, judiciaries and international organisations have responded to and dealt with the COVID-19 pandemic that has so profoundly shaped our lives. The similarities in the challenges faced by our respective countries provide a rare opportunity for us to learn from one another’s responses and approaches.

(a) An example would be the excellent work done by the COVID-19 Litigation Project, which has put together an extensive database with cases from jurisdictions around the world.

(b) Another example would be the ASEAN Judiciaries Portal. This portal, which serves as the website of the Council of ASEAN Chief Justices, is a convenient platform for litigants, foreign lawyers and businesses to gain insights into each ASEAN member state’s legal environment. During the pandemic, it provided a platform for ASEAN judiciaries to share how they responded to the pandemic.

(c) A further example would be the COVID-19 News Aggregator, maintained by the Asian Business Law Institute, which provides a useful overview of the experiences of the various jurisdictions.

These efforts are all heartening and show us how the coronavirus, while devastating, has given birth to learning opportunities for comparative administrative law and, more significantly, a learning imperative for us to be better prepared for future crises.[1]

2. In the next 15 minutes or so, I hope to give you a sense of how the Singapore courts view the function of judicial review in the context of crisis management, against the backdrop of a public health emergency. I suggest that the role of the courts in Singapore, as well as the fundamental concept of separation of powers, is no less pertinent during such emergencies.

3. During the pandemic, the Singapore government responded by putting in place a crisis framework that leveraged not only on existing laws, but also on a suite of new legislation that was very quickly promulgated.[2]  The Singapore courts, on their part, continued to operate in accordance with the long-held principle that the judicial role is to the interpret the law and not to govern or formulate public policies.

4. The question posed to this panel belies a concern, shared by many modern states, that where public health and safety are seriously threatened, decisive action by governments that “cannot … wait for the deliberate pace of ordinary constitutional rule” may be necessary.[3] For instance, safeguards to facilitate parliamentary debate and scrutiny may be perceived as hampering a quick response to burgeoning crisis concerns. The conventional wisdom, reflected in the constitutions of many countries today, is that emergency powers must be provided for, to deal with exceptional and urgent situations, where it is often the executive which has the necessary information and speed to respond.[4] The Singapore Constitution also has a similar provision. Article 150 of the Singapore Constitution allows the Singapore President to issue a Proclamation of Emergency where a grave emergency threatens the security or economic life of Singapore. While the proclamation is in force, parliament is empowered to make laws required by reason of the emergency, notwithstanding the rights set out in the Constitution, except for those relating to a narrow set of provisions, including those relating to “religion, citizenship or language.”[5]

5. Such emergency powers are almost invariably limited and intended to take effect only for limited periods of time, until the ordinary constitutional order can be restored. The exercise of such emergency powers, while they remain in effect, would clearly alter the role of the courts, for example, in reviewing legislation for constitutionality.[6] In that sense, there would be a “new allocation of powers”, with a more limited role played by the judiciary.

6. However, it has also been observed that politicians and elected officials are often reluctant to trigger such exceptional powers. Indeed, in Singapore, the emergency powers were not activated in response to the coronavirus pandemic, and no Proclamation of Emergency was issued.

7. Singapore reported our first case of COVID-19 on 23 January 2020, just a day after the government set up a multi-ministry task force to coordinate a response to the looming public health crisis. Initially, existing statutes such as the Infectious Diseases Act and the Immigration Act were relied upon, with the subsequent fast-track enactment of the COVID-19 (Temporary Measures) Act. This gave the Minister for Health wider powers to issue control orders to prevent the spread of COVID-19. These included, for instance, mask requirements, restrictions on social activities etc – not dissimilar from the measures that were implemented in Italy. While the Act gave the Minister broad discretion to issue such orders, these powers were subject to checks by both the courts and parliament – the control orders had to be presented to parliament “as soon as possible”[7] and are in principle subject to constitutional challenges and judicial review - akin to any other executive decision.

8. In the Singapore context, applications brought in our courts for judicial review of COVID-19 related measures have been rare. Several reasons have been posited for this. For instance, it has been suggested that Singaporeans are familiar with the trade-offs of rights versus public good.[8] I will not dwell on the potential reasons in my brief remarks today, save for two observations.

9. First, it has been suggested that the legitimacy of the measures adopted hinged in part on the government’s proactive strategy of timely communication. The government made consistent efforts to explain the rationale behind the various measures and provide Singaporeans with regular updates on the pandemic situation through daily media releases, regular press conferences, as well as messaging through social media applications, such as WhatsApp, Telegram, etc. The government’s WhatsApp channel had, at one juncture, over a million subscribers.[9] These efforts to engage Singaporeans fostered a better understanding of the situation, as well as allowed citizens to follow, in real time, the evolving goals behind the various measures taken by the government.

10. Second, under Singapore law, before a judicial review application can be brought, leave or permission must first be obtained. To obtain such leave, an applicant must show that:[10]

(a) the subject matter of the complaint is susceptible to judicial review;

(b) the applicant has sufficient interest in the matter; and

(c) the materials before the court disclose an arguable or prima facie case of reasonable suspicion in favour of granting the remedies sought.

11. In the recent Singapore High Court case of Han Hui Hui and others v Attorney-General [2022] SGHC 141 ("Han Hui Hui”), the applicants sought leave to apply for a quashing order against certain portions of an advisory that had been issued in October 2021 by the Ministry of Manpower, the national employer’s federation and the national trade union. This advisory, which I will refer to as “the October Advisory”, was issued to provide guidance on the work arrangements that employers could make for unvaccinated employees who could not physically return to work. The relevant portion of the October Advisory provided guidance on the “Workforce Vaccination Measures”, which provided that only employees who were fully vaccinated or who had recovered from COVID-19 within the preceding 270 days could return to the workplace. Specifically, the applicants sought to challenge the portion of the October Advisory which canvassed the possibility that unvaccinated employees whose work could not be performed from home could be placed on no-pay leave or, as a last resort, terminated from their employment with notice.[11]

12. The Singapore High Court ruled that the October Advisory neither carried legal effect, nor amounted to a directive from the government to terminate the employment of unvaccinated employees. As such, the quashing order sought by the applicants could not be made, and the advisory was not susceptible to judicial review. The application for leave was consequently rejected.[12]

13. I should also add that in an application for judicial review that is predicated on public rights, Singapore law requires that the applicant must demonstrate his standing to bring the application, in that the interference with, or violation of, such a public right has caused him “special damage”. This prevents the courts from being inundated by a multiplicity of actions by “mere busybodies and social gadflies”, to the detriment of good public administration.[13]

14. During the pandemic, the requirement of standing was re-emphasised by the Singapore Court of Appeal in the case of Daniel De Costa Augustin v Attorney-General [2020] 2 SLR 621. In that case, the applicant contended that holding of parliamentary elections during the COVID-19 pandemic would impinge on his rights to vote and to free and fair elections.

15. Aside from concluding that the applicant had not presented any arguable case as to how the right to free and fair elections was breached, the Court observed that, in any case, the applicant did not have standing to bring the claim. The applicant was found to have failed to demonstrate any special interest, or any way in which his right to vote had been affected, and his application was dismissed.

16. The key point to note in both these cases is that the Singapore courts have continued to apply established principles governing the granting of leave to commence judicial review, notwithstanding the advent of COVID-19. The requirement that applicants must first seek leave of the court before commencing an action for judicial review is intended to prevent a waste of judicial time and protect public bodies from harassment.[14]  Perhaps, some may view the need to prevent the courts and the government from being inundated with improper or unmeritorious suits as all the more acute, in the eye of a storm such as the pandemic. Rather than seeing a different judicial standard being applied, we instead saw tried and tested legal requirements take on added significance.

17. Let me now turn to briefly explain the understanding which Singapore courts have of their judicial role. The first Chief Justice of independent Singapore, Mr Wee Chong Jin, held that “[a]ll [legal] power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power.” In like vein, Chief Justice Sundaresh Menon, has observed that judicial power, which is also a legal power, must have constitutional limits.[15] Underlying these remarks is a recognition of the separate but complementary roles of the judiciary, executive and legislature, as endowed by the Constitution and encapsulated within the separation of powers doctrine. In this regard, the Singapore courts have consistently held that the court’s role in a judicial review application is a limited one that concerns a review of the decision-making process, rather than the merits of the actual decision. In other words, the courts are concerned with legality and constitutionality of the law or executive action, and not with their underlying merits. This must be the case, given that judges are not well placed to grapple with social or economic policy, or decide on questions that are political in character. The courts are constrained not only in terms of the information and other resources at their disposal, but also by the very definition of their role, which is in essence to retrospectively adjudicate upon rights and liabilities arising out of past events, and not to design policies to govern future conduct.[16]

18. I return to briefly discuss the case of Han Hui Hui, which I highlighted a few moments ago. Apart from challenging the October Advisory, the applicants in that case also sought leave to apply for quashing orders and declarations in respect of the government’s decision that COVID-19 patients who are unvaccinated by choice would be charged for their COVID-19 medical bills. The applicants contended, inter alia, that

(a) the decision was grounded on incorrect facts and therefore irrational;

(b) the ministries concerned had taken irrelevant considerations into account, with the result that the policy was illegal; and

(c) the decision violated the constitutional right to equality because it discriminated against those who were not vaccinated by choice.

19. The High Court rejected the application for leave to commence judicial review proceedings, holding that the evidence did not meet the requisite legal threshold of a prima facie case of reasonable suspicion for granting the quashing orders. Further, there were valid grounds for differentiating between the applicants and fully vaccinated individuals, meaning that there was no breach of the constitutional right to equality.

20. In coming to its decision, the High Court applied well-established principles of administrative law. Amongst other points, the applicants argued that the government’s decision had been made on the basis of inaccurate facts, by trying to demonstrate that a fully vaccinated person does not face a reduced probability of dying or falling seriously ill from COVID-19. In response to this, the court recognised that by this argument, the applicants were essentially inviting the court to make a holding of general scientific fact, which is generally not amenable to judicial resolution. This is because the court’s role is not to make pronouncements on the laws of nature that require clinical research and in-depth scientific study, but rather to make findings of fact that pertain specifically to the cases brought before it.[17] In any case, the statistics relied upon by the applicant in the Han Hui Hui case ultimately did not support their contentions, perhaps illustrating again the informational limitations the courts would face if it did indeed attempt to embark on a comprehensive adjudication of the scientific or technological efficacy of specific policies put in place by the Executive.

21. The High Court thus held that it would be improper to undertake a substantive review of the executive’s decision that unvaccinated individuals be charged for their medical bills. In this regard, while the High Court in Han Hui Hui observed that other courts have emphasised the importance of deference to executive decision-making during times of emergency,[18] I do not understand this to mean that the High Court had, for example, adopted a lower level of scrutiny in reviewing applications for leave to commence judicial proceedings. Rather, the High Court was merely applying the same approach that it would have used in the absence of the pandemic.

22. This clarity with which the High Court in Han Hui Hui distinguished between the remit of the executive and the judiciary was, in my respectful view, correct. The doctrine of separation of powers not only requires that the court refrains from treading onto what is properly the area of expertise of the executive or the legislature, but simultaneously requires that the court not defer to the other branches of government where the constitutionality or legality of a measure or statutory provision is challenged in legal proceedings.[19] This remains the case when the challenged measures have been put in place in response to a public health crisis.

23. It may well be that during times of national crisis, it is less clear what the appropriate policy decision should be. Be that as it may, that policy decision is still not within the remit of the Singapore courts. Having said that, where measures with a significant impact on the lives of citizens have to be implemented very quickly, the courts’ role in ensuring that the proper processes have been followed, and that the relevant considerations have been factored into account in arriving at those measures, take on weightier significance.

24. The tension between affording the government the ability to nimbly act with decisiveness in the public interest, while guarding against excesses by the executive, is a perennial one.[20]  I have sought to demonstrate, in my brief remarks, that the role of the judiciary in fostering the appropriate balance in that tension, within the constraints of the separation of powers doctrine, is no less evergreen.  Even during times of crises such as COVID-19.