I am a DPhil Candidate in Law at the University of Oxford. Prior to this I taught at the Faculty of Law at the Chinese University of Hong Kong and the National University of Singapore. I was awarded the Vice Chancellor's Exemplary Teaching Award at the Chinese University of Hong Kong in 2009. At NUS, I was awarded the Annual Teaching Excellence Award in 2016, 2017 and 2018 and was placed on the Honour Roll for Sustained Excellence in Teaching in 2019. My areas of research include constitutional and administrative law, with a focus on the latter and I have published in these areas in publications like Public Law, Federal Law Review, the Tort Law Review, the Asian Journal of Comparative Law and the International Journal of Constitutional Law. My DPhil looks at the role of the executive in authoring and advancing ‘the constitution’. Address: https://law.nus.edu.sg/about_us/faculty/staff/profileview.asp?UserID=lawssj
This paper confronts the continued viability of two entrenched features of administrative law in ... more This paper confronts the continued viability of two entrenched features of administrative law in Singapore. First, it argues that the taxonomy for organising the grounds of judicial review (illegality, irrationality and procedural fairness) is likely to be incrementally tested in Singapore through the development of newer grounds of judicial review. This paper looks at three particular grounds of review to exemplify this: review for errors of law; review for errors of fact and the doctrine of substantive legitimate expectations. Secondly, and related to the first, the paper interrogates the continued utility of the 'truism' that courts should only review the 'legality' and not the 'merits' of executive decision-making. It argues that this may no longer be an optimal way of balancing the various competing constitutional imperatives at play when determining the appropriate scope of judicial review by courts. Following this critique, the paper provides preliminary thoughts on two modest proposals for how administrative law can move forward to account for the developments that are testing these features of the law. It proposes: (a) a gradual and incremental move away from a taxonomy or categorization of grounds of review to an approach organised around varying the nature and intensity of review to demarcate the scope and boundaries of judicial review; and (b) a more intentional and careful consideration of the way in which remedies are pleaded by applicants and framed by the courts in their rulings.
Judicial Review Across the Common Law World: Origins and Adaptations (Swati Jhaveri & Michael Ramsden, eds) (Cambridge University press, forthcoming, March 2021), 2020
In the field of comparative public law, the focus has typically been on constitutional versus adm... more In the field of comparative public law, the focus has typically been on constitutional versus administrative law. A range of explanations are offered for this imbalance. Primarily, there is a concern that meaningful comparison may not be possible in the field of administrative law: given the nexus of the design of administrative law to the setup of the state in which it operates, there is too much variance across systems. As observed by Harlow & Rawlings, “[b]ehind every theory of administrative law there lies a theory of the state”. However, these debates about the barriers posed by context for comparison persist even in the field of comparative constitutional law, manifesting primarily as a concern that the parochially value-laden norms that make-up a particular jurisdictions’ domestic constitutional law are not amenable to comparison or transfer. However, comparative constitutional law has been able to overcome these hurdles to thrive much more strongly as a field of study as is evident from the proliferation of research in the field. This may be changing. There has been renewed interest in undertaking broad comparative administrative law studies across a wider range of jurisdictions on a wider range of issues. While the field has benefited from this renewed interest in understanding the design of different systems of administrative law and justice, the scope of comparison remains relatively narrow in the specific context of comparative common law studies. This Chapter analyses various existing comparative endeavours in the common law world, with a view to looking at how the field can progress further in its comparative work. It proposes that one area ripe for further work is to further refine our understanding of common law systems of administrative law. In current comparative studies, common law systems are typically identified as a family of systems which share a range of characteristics: a role for the ordinary courts in holding executive bodies to account; the nature of the court’s role (review on the grounds of the ‘legality’ versus the ‘merits’ of a decision, with the latter being the preserve of the executive or administrative tribunals); grounds of judicial review that manifest this distinction between legality and merits-based review (jurisdictional error, procedural fairness, ‘legality’); the institutions outside of the courts used to achieve the ends of administrative law (tribunals, ombudsmen, independent anti-corruption commissions); the aims of administrative law (coalescing around broadly shared understandings of ‘legitimacy’, transparency, compliance with statutory frameworks for decision-making, ‘fair’ and inclusive decision-making processes that engage relevant stakeholders (civic, expert, political)); and a sense of how courts and political branches are supposed to interact in the overall administrative law industry (with different systems plotting themselves along different points of a spectrum in the balance of power between courts and the executive branch). The aim of this volume is to push back on this observation that common law systems tend to coalesce around this group of concepts and ideas. There is a significant amount of variance that it is necessary to explore and which only becomes apparent when specifically considered from the perspective of divergence (in this case divergence from English law roots of administrative law). The contributors to this volume investigate the continued utilisation of English law across common law systems that traditionally imported, or were modelled on, English law. The contributors consider the origins of English law within the jurisdiction (doctrines, concepts, structures, constitutional underpinnings); the range of adaptations made to English law and the autochthonous forces that influenced this adaptive process. The objective is to evaluate, not just the continuing impact of the English law transplant in a multitude of common law jurisdictions that were recipients of English law, but the broad range of causal factors and agents that influence the development of the common law. This conversation will be assisted with input from the perspective of a wide range of common law jurisdictions, including those outside the traditional focus of comparative administrative law in the common law world (outside Australia, New Zealand, England, USA and Canada to include South Africa, India, Singapore, Malaysia, Israel, Bangladesh, Scotland, Kenya, Republic of Ireland and Hong Kong). Such a conversation will help develop a much more refined and robust understanding of ‘common law’ administrative law that is not skewed towards an understanding coming out of the usual jurisdictions of comparison, especially for the benefit of ‘newer’ common law jurisdictions which are undergoing a more nascent development of administrative law and looking for inspiration on modes of development. It will also provide a more refined definition of ‘common law’ approaches to judicial review for studies cutting across the common law and civil law divide, which have until now tended to be driven by a ‘unitary’ or narrow understanding of ‘common law’ systems as a, more or less, unified group of systems with certain shared characteristics. This Chapter first engages with these restrictions in existing studies. It then moves on to look at specific questions that may be used to explore the degree of difference and diversity in approaches to judicial review in the common law world. The chapter concludes that multiple categories of common law systems are apparent once common law systems are studied from the perspective of divergence. While common law systems may share a set of vocabulary, there is greater variance and nuance in the approach to judicial review that needs to be appreciated. The conclusion maps out a possible typology of common law systems.
Predictions have been made about the inevitable demise of judicial review of executive action on ... more Predictions have been made about the inevitable demise of judicial review of executive action on the grounds of 'reasonableness' for some time. This is especially heightened as and when other substantive grounds of judicial review—for example, proportionality and review for material error of fact—emerge and gain traction. It is argued that these newer grounds are much better suited to the task of reviewing the substance of executive decision-making and they, therefore, reduce the appetite for reasonableness review. This paper considers judicial attempts to retain such review in England, Australia and Canada, notwithstanding the flourishing of other substantive grounds of review. It evaluates the reasons, particular to each jurisdiction, for retaining reasonableness review. In the English context, it could be a useful tool to slow down advances in the scope of review. In the Australian context, it could be a suitable vehicle for the incremental expansion of substantive review relative to proportionality, in a way that is not too disruptive of the relatively conservative approach to judicial review on questions of substance. In the Canadian context, it is the only counterpoint available to correctness as a standard of review in the area of substantive review. It could be argued that the retention of a standard of review—like reasonableness—that has a tendency towards deference is misplaced in an era where there appears to be a growing interest in strengthening a culture of justification in the executive through stronger judicial review. Here the aims of the paper are modest. It is not being suggested that reasonableness review should be the sole or primary ground for substantive review. Instead, the paper argues that there is some merit in retaining a tool that is more readily capable of a deferential application (relative to proportionality or correctness as standards of review). The merit of reasonableness review lies in its cautious approach rather than its potential to grow into a strong or sufficient tool of review and, indeed, it is not necessary for it to do so in today's substantive review landscape.
The question of whether constitutional law can protect, consolidate, and advance democracy has be... more The question of whether constitutional law can protect, consolidate, and advance democracy has been considered extensively in multiple jurisdictions. The issue has not yet been considered in the context of one of the most problematic contemporary democratic transitions: Hong Kong's, from an externally governed colonial outpost to a self-governed suffrage-based special administrative region of the People's Republic of China. The Basic Law of Hong Kong proposes the eventual election of the Legislative Council and Chief Executive of Hong Kong by some form of universal suffrage. These provisions are at the core of the 'democratic constitution' of Hong Kong. Achieving this goal requires consensus between the executive in Hong Kong, members of the Legislative Council in Hong Kong, and the legislative body of the People's Republic of China. Although not a formal constitutional requirement, any democratization efforts will also require popular buy-in from Hong Kong residents in order to function effectively. However, it is increasingly clear that the views of all concerned do not converge on how and when these constitutional aspirations should be realized. In addition, all parties have started moving outside of this constitutional framework when deliberating issues of political reform. This article looks at the problems in the constitutional design of the Hong Kong Special Administrative Region that have resulted in this political deadlock. The article will then look at one solution to mitigate the effect of these design issues and to move forward again on the issue of reform: 'litigating' the democratic constitution in the courts. The article discusses the advantages of the courts in the process: primarily the capacity of the courts to reconstitutionalize political debate on electoral issues. This article evaluates the largely unsuccessful use of the courts thus far by Hong Kong residents to correct and advance political reform. It considers possible reasons for the high failure rate in courts and proposes alternative litigation strategies that can better utilize the position of the courts to reorient all parties to the Basic Law.
The rules on standing in Singapore have traditionally restricted the commencement of judicial rev... more The rules on standing in Singapore have traditionally restricted the commencement of judicial review proceedings by anyone other than applicants directly and individually affected by either a legislative provision or executive action: there has been little scope for what is known as 'public interest litigation' (in all its various forms). This had been the landscape of public law adjudication in Singapore until recently. However, in the past five years, the courts have had to consider challenges by applicants in the absence of such a direct interest. Thus far, the discussion on these cases has focused on broader issues of constitutional interpretation and what the cases indicate about constitutionalism in Singapore. There has been little discussion on issues of standing and what this implies about the role of public law adjudication in Singapore. This article will show how, while explicitly rejecting the possibility of public interest litigation, the courts have provided some scope for developing a more circumscribed form of 'representative' standing in serious cases of illegality or unconstitutionality with built-in control features to prevent actions by 'busybodies' and ensure that the court does not become involved in free-standing political debate. It will propose how these developments may evolve over time, particularly, in a way that maintains the controls the courts have introduced thus far.
Abstract: Hong Kong Administrative Law provides the most comprehensive and up to date commentary ... more Abstract: Hong Kong Administrative Law provides the most comprehensive and up to date commentary on this increasingly important area of law in Hong Kong. This book takes account of Hong Kong's new constitutional and administrative order since 1997. Focus is placed on areas of ...
This article evaluates the different norms and arguments that the courts have used to deal with t... more This article evaluates the different norms and arguments that the courts have used to deal with the question of whether a public authority owes a duty of care to a particular claimant. In analysing the law in the area, the author identifies three decision-making tools used by the courts: private law norms, public law norms and policy arguments. She argues that a common problem with the courts' use of these tools inattention to the different categories of cases involving public authorities and that the courts should adopt different strategies in deciding a case, depending on the category of the case. Two categories of cases are identified here: discrete cases of negligence and cases of systemic negligence. It is argued that the latter are unsuitable for resolution via tort law. The author proposes an alternative decision-making approach that is sensitive to the different categories of cases and that is based on a calibrated use of the different norms and arguments for each category. In proposing this alternative, she identifies three risks with adopting "skewed" approaches that tend to favour the application of any one set of norms or arguments, characterising these problems as categorical problems, compliance-based problems and dialogic problems. The author concludes by highlighting the potential that the alternative approach proposed has to facilitate a more cooperative dialogue between the judiciary and the executive that is based on a greater shared understanding of the scope and application of the tort of negligence in relation to public activities.
A paper analysing applications for judicial review that seek to challenge the constitutionality o... more A paper analysing applications for judicial review that seek to challenge the constitutionality of aspects of the electoral and political system in Hong Kong.
The boundaries of recovery for personal injury, property damage, psychiatric damage and pure econ... more The boundaries of recovery for personal injury, property damage, psychiatric damage and pure economic loss have been the subject of extensive judicial discussion. However, the courts are constantly asked to consider whether to expand recovery for such damage to novel situations. Wrongful conception is one such situation. In these cases parents claim, inter alia, the costs of raising a child conceived and born as a result of a negligent medical sterilisation procedure or negligent advice on this procedure. Decisions of the highest courts in common law jurisdictions reveal significant differences in judicial strategies deployed to consider whether to recognise recovery. Using wrongful conception as a case study, this article compares and analyses various aspects of the judicial strategies. Five main areas of concern are identified, including: problems with the conceptualisation of the harm claimed; insufficient attention to incrementalism and the pace and "quantum" of the development of the law; and the development of hard-edged and categorical "rules" leading to either anomalies or "injustice" in subsequent cases. The article evaluates these problems and offers some preliminary conclusions on what kind of overall judicial strategy may be best for handling novel situations.
This paper evaluates the recent development of “fairness” as a ground of judicial review by the c... more This paper evaluates the recent development of “fairness” as a ground of judicial review by the courts in Hong Kong. This newly developed ground of fairness is significantly more far-reaching than “procedural fairness” and other existing uses of fairness in judicial review. Key innovations include: (a) the courts’ review of systemic problems with decision-making processes; (b) the extension of the courts’ review of the fairness of such processes beyond the traditional focus on, for example, the right to a hearing; and (c) the introduction of a sliding scale of review with stronger or “anxious” scrutiny of decision-making processes. The paper evaluates the need for these innovations, noting an absence of a conscious internalization of procedural standards in decision making at the executive level. The paper concludes that the ground of fairness, therefore, is a positive development of administrative law. However, in addition to the usual risk of over-judicialization of administrative process, there is a risk that the recently developed ground is too hard-edged as currently formulated. The paper, therefore, proposes the introduction of a justificatory and balancing component to its usage, similar to that used in the context of proportionality. It also proposes a clarification of the kinds of situations that would trigger the use of this stronger ground of fairness.
Since 1997, Hong Kong has had its own “mini-constitution” in the form of the Basic Law. To date, ... more Since 1997, Hong Kong has had its own “mini-constitution” in the form of the Basic Law. To date, there has been little scrutiny of the relationship between the courts and the legislature and executive in terms of the court’s impact on the subsequent actions of the latter two arms of government. It is unclear how the other branches of government have responded to judicial review proceedings, or what this tells us about the relative involvement of the three institutions in the evolution of constitutional meaning. This article looks at the interaction between the different institutions following judicial review proceedings relating to particular legislation. The article considers cases where courts issued a finding of constitutional invalidity of legislation or policy and what the legislature and administration did to rectify it. This paper considers what these responses say about the relationship between the different institutions. In evaluating these cases, we will consider, inter alia, the pathways signposted in the judgments for the better enforcement of constitutional norms by the executive and legislature as well as the actions of the executive and legislature in any subsequent law-making process.
- Offers a comprehensive overview of the transformations to the modern law of judicial review acr... more - Offers a comprehensive overview of the transformations to the modern law of judicial review across the common law world
Includes contributions from over 30 of the leading figures in public law from academia and legal practice;
- Includes comparative analyses of recurring problems in judicial review together with case studies of law reform in the major common law jurisdictions;
- Features a section on administrative justice in China, a country so far under-explored in the public law literature;
The use and scope of judicial review of government action has transformed across the common law world over the last forty years. This volume takes stock of the transformation, bringing together over 30 leading figures from academia and practice to analyse the major issues surrounding the legal reforms from theoretical and comparative perspectives.
Coverage in the book spans the theoretical foundations of judicial review; the scope and functions of administrative justice; the conditions of judicial independence; recurring problems in legal doctrine; and issues in legal procedure. A final set of essays presents case studies of the experiences of reforming judicial review in different countries, including an extended section on judicial review in China.
Readership: Academics working on constitutional and administrative law. Practitioners working in the area of judicial review.
This paper confronts the continued viability of two entrenched features of administrative law in ... more This paper confronts the continued viability of two entrenched features of administrative law in Singapore. First, it argues that the taxonomy for organising the grounds of judicial review (illegality, irrationality and procedural fairness) is likely to be incrementally tested in Singapore through the development of newer grounds of judicial review. This paper looks at three particular grounds of review to exemplify this: review for errors of law; review for errors of fact and the doctrine of substantive legitimate expectations. Secondly, and related to the first, the paper interrogates the continued utility of the 'truism' that courts should only review the 'legality' and not the 'merits' of executive decision-making. It argues that this may no longer be an optimal way of balancing the various competing constitutional imperatives at play when determining the appropriate scope of judicial review by courts. Following this critique, the paper provides preliminary thoughts on two modest proposals for how administrative law can move forward to account for the developments that are testing these features of the law. It proposes: (a) a gradual and incremental move away from a taxonomy or categorization of grounds of review to an approach organised around varying the nature and intensity of review to demarcate the scope and boundaries of judicial review; and (b) a more intentional and careful consideration of the way in which remedies are pleaded by applicants and framed by the courts in their rulings.
Judicial Review Across the Common Law World: Origins and Adaptations (Swati Jhaveri & Michael Ramsden, eds) (Cambridge University press, forthcoming, March 2021), 2020
In the field of comparative public law, the focus has typically been on constitutional versus adm... more In the field of comparative public law, the focus has typically been on constitutional versus administrative law. A range of explanations are offered for this imbalance. Primarily, there is a concern that meaningful comparison may not be possible in the field of administrative law: given the nexus of the design of administrative law to the setup of the state in which it operates, there is too much variance across systems. As observed by Harlow & Rawlings, “[b]ehind every theory of administrative law there lies a theory of the state”. However, these debates about the barriers posed by context for comparison persist even in the field of comparative constitutional law, manifesting primarily as a concern that the parochially value-laden norms that make-up a particular jurisdictions’ domestic constitutional law are not amenable to comparison or transfer. However, comparative constitutional law has been able to overcome these hurdles to thrive much more strongly as a field of study as is evident from the proliferation of research in the field. This may be changing. There has been renewed interest in undertaking broad comparative administrative law studies across a wider range of jurisdictions on a wider range of issues. While the field has benefited from this renewed interest in understanding the design of different systems of administrative law and justice, the scope of comparison remains relatively narrow in the specific context of comparative common law studies. This Chapter analyses various existing comparative endeavours in the common law world, with a view to looking at how the field can progress further in its comparative work. It proposes that one area ripe for further work is to further refine our understanding of common law systems of administrative law. In current comparative studies, common law systems are typically identified as a family of systems which share a range of characteristics: a role for the ordinary courts in holding executive bodies to account; the nature of the court’s role (review on the grounds of the ‘legality’ versus the ‘merits’ of a decision, with the latter being the preserve of the executive or administrative tribunals); grounds of judicial review that manifest this distinction between legality and merits-based review (jurisdictional error, procedural fairness, ‘legality’); the institutions outside of the courts used to achieve the ends of administrative law (tribunals, ombudsmen, independent anti-corruption commissions); the aims of administrative law (coalescing around broadly shared understandings of ‘legitimacy’, transparency, compliance with statutory frameworks for decision-making, ‘fair’ and inclusive decision-making processes that engage relevant stakeholders (civic, expert, political)); and a sense of how courts and political branches are supposed to interact in the overall administrative law industry (with different systems plotting themselves along different points of a spectrum in the balance of power between courts and the executive branch). The aim of this volume is to push back on this observation that common law systems tend to coalesce around this group of concepts and ideas. There is a significant amount of variance that it is necessary to explore and which only becomes apparent when specifically considered from the perspective of divergence (in this case divergence from English law roots of administrative law). The contributors to this volume investigate the continued utilisation of English law across common law systems that traditionally imported, or were modelled on, English law. The contributors consider the origins of English law within the jurisdiction (doctrines, concepts, structures, constitutional underpinnings); the range of adaptations made to English law and the autochthonous forces that influenced this adaptive process. The objective is to evaluate, not just the continuing impact of the English law transplant in a multitude of common law jurisdictions that were recipients of English law, but the broad range of causal factors and agents that influence the development of the common law. This conversation will be assisted with input from the perspective of a wide range of common law jurisdictions, including those outside the traditional focus of comparative administrative law in the common law world (outside Australia, New Zealand, England, USA and Canada to include South Africa, India, Singapore, Malaysia, Israel, Bangladesh, Scotland, Kenya, Republic of Ireland and Hong Kong). Such a conversation will help develop a much more refined and robust understanding of ‘common law’ administrative law that is not skewed towards an understanding coming out of the usual jurisdictions of comparison, especially for the benefit of ‘newer’ common law jurisdictions which are undergoing a more nascent development of administrative law and looking for inspiration on modes of development. It will also provide a more refined definition of ‘common law’ approaches to judicial review for studies cutting across the common law and civil law divide, which have until now tended to be driven by a ‘unitary’ or narrow understanding of ‘common law’ systems as a, more or less, unified group of systems with certain shared characteristics. This Chapter first engages with these restrictions in existing studies. It then moves on to look at specific questions that may be used to explore the degree of difference and diversity in approaches to judicial review in the common law world. The chapter concludes that multiple categories of common law systems are apparent once common law systems are studied from the perspective of divergence. While common law systems may share a set of vocabulary, there is greater variance and nuance in the approach to judicial review that needs to be appreciated. The conclusion maps out a possible typology of common law systems.
Predictions have been made about the inevitable demise of judicial review of executive action on ... more Predictions have been made about the inevitable demise of judicial review of executive action on the grounds of 'reasonableness' for some time. This is especially heightened as and when other substantive grounds of judicial review—for example, proportionality and review for material error of fact—emerge and gain traction. It is argued that these newer grounds are much better suited to the task of reviewing the substance of executive decision-making and they, therefore, reduce the appetite for reasonableness review. This paper considers judicial attempts to retain such review in England, Australia and Canada, notwithstanding the flourishing of other substantive grounds of review. It evaluates the reasons, particular to each jurisdiction, for retaining reasonableness review. In the English context, it could be a useful tool to slow down advances in the scope of review. In the Australian context, it could be a suitable vehicle for the incremental expansion of substantive review relative to proportionality, in a way that is not too disruptive of the relatively conservative approach to judicial review on questions of substance. In the Canadian context, it is the only counterpoint available to correctness as a standard of review in the area of substantive review. It could be argued that the retention of a standard of review—like reasonableness—that has a tendency towards deference is misplaced in an era where there appears to be a growing interest in strengthening a culture of justification in the executive through stronger judicial review. Here the aims of the paper are modest. It is not being suggested that reasonableness review should be the sole or primary ground for substantive review. Instead, the paper argues that there is some merit in retaining a tool that is more readily capable of a deferential application (relative to proportionality or correctness as standards of review). The merit of reasonableness review lies in its cautious approach rather than its potential to grow into a strong or sufficient tool of review and, indeed, it is not necessary for it to do so in today's substantive review landscape.
The question of whether constitutional law can protect, consolidate, and advance democracy has be... more The question of whether constitutional law can protect, consolidate, and advance democracy has been considered extensively in multiple jurisdictions. The issue has not yet been considered in the context of one of the most problematic contemporary democratic transitions: Hong Kong's, from an externally governed colonial outpost to a self-governed suffrage-based special administrative region of the People's Republic of China. The Basic Law of Hong Kong proposes the eventual election of the Legislative Council and Chief Executive of Hong Kong by some form of universal suffrage. These provisions are at the core of the 'democratic constitution' of Hong Kong. Achieving this goal requires consensus between the executive in Hong Kong, members of the Legislative Council in Hong Kong, and the legislative body of the People's Republic of China. Although not a formal constitutional requirement, any democratization efforts will also require popular buy-in from Hong Kong residents in order to function effectively. However, it is increasingly clear that the views of all concerned do not converge on how and when these constitutional aspirations should be realized. In addition, all parties have started moving outside of this constitutional framework when deliberating issues of political reform. This article looks at the problems in the constitutional design of the Hong Kong Special Administrative Region that have resulted in this political deadlock. The article will then look at one solution to mitigate the effect of these design issues and to move forward again on the issue of reform: 'litigating' the democratic constitution in the courts. The article discusses the advantages of the courts in the process: primarily the capacity of the courts to reconstitutionalize political debate on electoral issues. This article evaluates the largely unsuccessful use of the courts thus far by Hong Kong residents to correct and advance political reform. It considers possible reasons for the high failure rate in courts and proposes alternative litigation strategies that can better utilize the position of the courts to reorient all parties to the Basic Law.
The rules on standing in Singapore have traditionally restricted the commencement of judicial rev... more The rules on standing in Singapore have traditionally restricted the commencement of judicial review proceedings by anyone other than applicants directly and individually affected by either a legislative provision or executive action: there has been little scope for what is known as 'public interest litigation' (in all its various forms). This had been the landscape of public law adjudication in Singapore until recently. However, in the past five years, the courts have had to consider challenges by applicants in the absence of such a direct interest. Thus far, the discussion on these cases has focused on broader issues of constitutional interpretation and what the cases indicate about constitutionalism in Singapore. There has been little discussion on issues of standing and what this implies about the role of public law adjudication in Singapore. This article will show how, while explicitly rejecting the possibility of public interest litigation, the courts have provided some scope for developing a more circumscribed form of 'representative' standing in serious cases of illegality or unconstitutionality with built-in control features to prevent actions by 'busybodies' and ensure that the court does not become involved in free-standing political debate. It will propose how these developments may evolve over time, particularly, in a way that maintains the controls the courts have introduced thus far.
Abstract: Hong Kong Administrative Law provides the most comprehensive and up to date commentary ... more Abstract: Hong Kong Administrative Law provides the most comprehensive and up to date commentary on this increasingly important area of law in Hong Kong. This book takes account of Hong Kong's new constitutional and administrative order since 1997. Focus is placed on areas of ...
This article evaluates the different norms and arguments that the courts have used to deal with t... more This article evaluates the different norms and arguments that the courts have used to deal with the question of whether a public authority owes a duty of care to a particular claimant. In analysing the law in the area, the author identifies three decision-making tools used by the courts: private law norms, public law norms and policy arguments. She argues that a common problem with the courts' use of these tools inattention to the different categories of cases involving public authorities and that the courts should adopt different strategies in deciding a case, depending on the category of the case. Two categories of cases are identified here: discrete cases of negligence and cases of systemic negligence. It is argued that the latter are unsuitable for resolution via tort law. The author proposes an alternative decision-making approach that is sensitive to the different categories of cases and that is based on a calibrated use of the different norms and arguments for each category. In proposing this alternative, she identifies three risks with adopting "skewed" approaches that tend to favour the application of any one set of norms or arguments, characterising these problems as categorical problems, compliance-based problems and dialogic problems. The author concludes by highlighting the potential that the alternative approach proposed has to facilitate a more cooperative dialogue between the judiciary and the executive that is based on a greater shared understanding of the scope and application of the tort of negligence in relation to public activities.
A paper analysing applications for judicial review that seek to challenge the constitutionality o... more A paper analysing applications for judicial review that seek to challenge the constitutionality of aspects of the electoral and political system in Hong Kong.
The boundaries of recovery for personal injury, property damage, psychiatric damage and pure econ... more The boundaries of recovery for personal injury, property damage, psychiatric damage and pure economic loss have been the subject of extensive judicial discussion. However, the courts are constantly asked to consider whether to expand recovery for such damage to novel situations. Wrongful conception is one such situation. In these cases parents claim, inter alia, the costs of raising a child conceived and born as a result of a negligent medical sterilisation procedure or negligent advice on this procedure. Decisions of the highest courts in common law jurisdictions reveal significant differences in judicial strategies deployed to consider whether to recognise recovery. Using wrongful conception as a case study, this article compares and analyses various aspects of the judicial strategies. Five main areas of concern are identified, including: problems with the conceptualisation of the harm claimed; insufficient attention to incrementalism and the pace and "quantum" of the development of the law; and the development of hard-edged and categorical "rules" leading to either anomalies or "injustice" in subsequent cases. The article evaluates these problems and offers some preliminary conclusions on what kind of overall judicial strategy may be best for handling novel situations.
This paper evaluates the recent development of “fairness” as a ground of judicial review by the c... more This paper evaluates the recent development of “fairness” as a ground of judicial review by the courts in Hong Kong. This newly developed ground of fairness is significantly more far-reaching than “procedural fairness” and other existing uses of fairness in judicial review. Key innovations include: (a) the courts’ review of systemic problems with decision-making processes; (b) the extension of the courts’ review of the fairness of such processes beyond the traditional focus on, for example, the right to a hearing; and (c) the introduction of a sliding scale of review with stronger or “anxious” scrutiny of decision-making processes. The paper evaluates the need for these innovations, noting an absence of a conscious internalization of procedural standards in decision making at the executive level. The paper concludes that the ground of fairness, therefore, is a positive development of administrative law. However, in addition to the usual risk of over-judicialization of administrative process, there is a risk that the recently developed ground is too hard-edged as currently formulated. The paper, therefore, proposes the introduction of a justificatory and balancing component to its usage, similar to that used in the context of proportionality. It also proposes a clarification of the kinds of situations that would trigger the use of this stronger ground of fairness.
Since 1997, Hong Kong has had its own “mini-constitution” in the form of the Basic Law. To date, ... more Since 1997, Hong Kong has had its own “mini-constitution” in the form of the Basic Law. To date, there has been little scrutiny of the relationship between the courts and the legislature and executive in terms of the court’s impact on the subsequent actions of the latter two arms of government. It is unclear how the other branches of government have responded to judicial review proceedings, or what this tells us about the relative involvement of the three institutions in the evolution of constitutional meaning. This article looks at the interaction between the different institutions following judicial review proceedings relating to particular legislation. The article considers cases where courts issued a finding of constitutional invalidity of legislation or policy and what the legislature and administration did to rectify it. This paper considers what these responses say about the relationship between the different institutions. In evaluating these cases, we will consider, inter alia, the pathways signposted in the judgments for the better enforcement of constitutional norms by the executive and legislature as well as the actions of the executive and legislature in any subsequent law-making process.
- Offers a comprehensive overview of the transformations to the modern law of judicial review acr... more - Offers a comprehensive overview of the transformations to the modern law of judicial review across the common law world
Includes contributions from over 30 of the leading figures in public law from academia and legal practice;
- Includes comparative analyses of recurring problems in judicial review together with case studies of law reform in the major common law jurisdictions;
- Features a section on administrative justice in China, a country so far under-explored in the public law literature;
The use and scope of judicial review of government action has transformed across the common law world over the last forty years. This volume takes stock of the transformation, bringing together over 30 leading figures from academia and practice to analyse the major issues surrounding the legal reforms from theoretical and comparative perspectives.
Coverage in the book spans the theoretical foundations of judicial review; the scope and functions of administrative justice; the conditions of judicial independence; recurring problems in legal doctrine; and issues in legal procedure. A final set of essays presents case studies of the experiences of reforming judicial review in different countries, including an extended section on judicial review in China.
Readership: Academics working on constitutional and administrative law. Practitioners working in the area of judicial review.
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Papers by Swati Jhaveri
While the field has benefited from this renewed interest in understanding the design of different systems of administrative law and justice, the scope of comparison remains relatively narrow in the specific context of comparative common law studies. This Chapter analyses various existing comparative endeavours in the common law world, with a view to looking at how the field can progress further in its comparative work. It proposes that one area ripe for further work is to further refine our understanding of common law systems of administrative law. In current comparative studies, common law systems are typically identified as a family of systems which share a range of characteristics: a role for the ordinary courts in holding executive bodies to account; the nature of the court’s role (review on the grounds of the ‘legality’ versus the ‘merits’ of a decision, with the latter being the preserve of the executive or administrative tribunals); grounds of judicial review that manifest this distinction between legality and merits-based review (jurisdictional error, procedural fairness, ‘legality’); the institutions outside of the courts used to achieve the ends of administrative law (tribunals, ombudsmen, independent anti-corruption commissions); the aims of administrative law (coalescing around broadly shared understandings of ‘legitimacy’, transparency, compliance with statutory frameworks for decision-making, ‘fair’ and inclusive decision-making processes that engage relevant stakeholders (civic, expert, political)); and a sense of how courts and political branches are supposed to interact in the overall administrative law industry (with different systems plotting themselves along different points of a spectrum in the balance of power between courts and the executive branch).
The aim of this volume is to push back on this observation that common law systems tend to coalesce around this group of concepts and ideas. There is a significant amount of variance that it is necessary to explore and which only becomes apparent when specifically considered from the perspective of divergence (in this case divergence from English law roots of administrative law). The contributors to this volume investigate the continued utilisation of English law across common law systems that traditionally imported, or were modelled on, English law. The contributors consider the origins of English law within the jurisdiction (doctrines, concepts, structures, constitutional underpinnings); the range of adaptations made to English law and the autochthonous forces that influenced this adaptive process. The objective is to evaluate, not just the continuing impact of the English law transplant in a multitude of common law jurisdictions that were recipients of English law, but the broad range of causal factors and agents that influence the development of the common law. This conversation will be assisted with input from the perspective of a wide range of common law jurisdictions, including those outside the traditional focus of comparative administrative law in the common law world (outside Australia, New Zealand, England, USA and Canada to include South Africa, India, Singapore, Malaysia, Israel, Bangladesh, Scotland, Kenya, Republic of Ireland and Hong Kong).
Such a conversation will help develop a much more refined and robust understanding of ‘common law’ administrative law that is not skewed towards an understanding coming out of the usual jurisdictions of comparison, especially for the benefit of ‘newer’ common law jurisdictions which are undergoing a more nascent development of administrative law and looking for inspiration on modes of development. It will also provide a more refined definition of ‘common law’ approaches to judicial review for studies cutting across the common law and civil law divide, which have until now tended to be driven by a ‘unitary’ or narrow understanding of ‘common law’ systems as a, more or less, unified group of systems with certain shared characteristics. This Chapter first engages with these restrictions in existing studies. It then moves on to look at specific questions that may be used to explore the degree of difference and diversity in approaches to judicial review in the common law world. The chapter concludes that multiple categories of common law systems are apparent once common law systems are studied from the perspective of divergence. While common law systems may share a set of vocabulary, there is greater variance and nuance in the approach to judicial review that needs to be appreciated. The conclusion maps out a possible typology of common law systems.
proceedings by anyone other than applicants directly and individually affected by either a legislative
provision or executive action: there has been little scope for what is known as 'public interest
litigation' (in all its various forms). This had been the landscape of public law adjudication in
Singapore until recently. However, in the past five years, the courts have had to consider challenges by
applicants in the absence of such a direct interest. Thus far, the discussion on these cases has focused
on broader issues of constitutional interpretation and what the cases indicate about constitutionalism
in Singapore. There has been little discussion on issues of standing and what this implies about the
role of public law adjudication in Singapore. This article will show how, while explicitly rejecting the
possibility of public interest litigation, the courts have provided some scope for developing a more
circumscribed form of 'representative' standing in serious cases of illegality or unconstitutionality
with built-in control features to prevent actions by 'busybodies' and ensure that the court does not
become involved in free-standing political debate. It will propose how these developments may
evolve over time, particularly, in a way that maintains the controls the courts have introduced thus
far.
that the recently developed ground is too hard-edged as currently formulated. The paper, therefore, proposes the introduction of a justificatory and balancing component to its usage, similar to that used in the context of proportionality. It also proposes a clarification of the kinds of situations that would trigger the use of this stronger ground of fairness.
review proceedings, or what this tells us about the relative involvement of the three institutions in the evolution of constitutional meaning. This article looks at the interaction between the different institutions following judicial review proceedings relating to particular legislation. The article considers cases where courts issued a finding of constitutional invalidity of legislation or policy and what the legislature and administration did to rectify it. This paper considers what these responses say about the relationship between the different institutions. In evaluating these cases, we will consider, inter alia, the pathways signposted in the judgments for the better enforcement of constitutional norms by the executive and legislature as well as the actions of the executive and legislature in any subsequent law-making process.
Books by Swati Jhaveri
Includes contributions from over 30 of the leading figures in public law from academia and legal practice;
- Includes comparative analyses of recurring problems in judicial review together with case studies of law reform in the major common law jurisdictions;
- Features a section on administrative justice in China, a country so far under-explored in the public law literature;
The use and scope of judicial review of government action has transformed across the common law world over the last forty years. This volume takes stock of the transformation, bringing together over 30 leading figures from academia and practice to analyse the major issues surrounding the legal reforms from theoretical and comparative perspectives.
Coverage in the book spans the theoretical foundations of judicial review; the scope and functions of administrative justice; the conditions of judicial independence; recurring problems in legal doctrine; and issues in legal procedure. A final set of essays presents case studies of the experiences of reforming judicial review in different countries, including an extended section on judicial review in China.
Readership: Academics working on constitutional and administrative law. Practitioners working in the area of judicial review.
While the field has benefited from this renewed interest in understanding the design of different systems of administrative law and justice, the scope of comparison remains relatively narrow in the specific context of comparative common law studies. This Chapter analyses various existing comparative endeavours in the common law world, with a view to looking at how the field can progress further in its comparative work. It proposes that one area ripe for further work is to further refine our understanding of common law systems of administrative law. In current comparative studies, common law systems are typically identified as a family of systems which share a range of characteristics: a role for the ordinary courts in holding executive bodies to account; the nature of the court’s role (review on the grounds of the ‘legality’ versus the ‘merits’ of a decision, with the latter being the preserve of the executive or administrative tribunals); grounds of judicial review that manifest this distinction between legality and merits-based review (jurisdictional error, procedural fairness, ‘legality’); the institutions outside of the courts used to achieve the ends of administrative law (tribunals, ombudsmen, independent anti-corruption commissions); the aims of administrative law (coalescing around broadly shared understandings of ‘legitimacy’, transparency, compliance with statutory frameworks for decision-making, ‘fair’ and inclusive decision-making processes that engage relevant stakeholders (civic, expert, political)); and a sense of how courts and political branches are supposed to interact in the overall administrative law industry (with different systems plotting themselves along different points of a spectrum in the balance of power between courts and the executive branch).
The aim of this volume is to push back on this observation that common law systems tend to coalesce around this group of concepts and ideas. There is a significant amount of variance that it is necessary to explore and which only becomes apparent when specifically considered from the perspective of divergence (in this case divergence from English law roots of administrative law). The contributors to this volume investigate the continued utilisation of English law across common law systems that traditionally imported, or were modelled on, English law. The contributors consider the origins of English law within the jurisdiction (doctrines, concepts, structures, constitutional underpinnings); the range of adaptations made to English law and the autochthonous forces that influenced this adaptive process. The objective is to evaluate, not just the continuing impact of the English law transplant in a multitude of common law jurisdictions that were recipients of English law, but the broad range of causal factors and agents that influence the development of the common law. This conversation will be assisted with input from the perspective of a wide range of common law jurisdictions, including those outside the traditional focus of comparative administrative law in the common law world (outside Australia, New Zealand, England, USA and Canada to include South Africa, India, Singapore, Malaysia, Israel, Bangladesh, Scotland, Kenya, Republic of Ireland and Hong Kong).
Such a conversation will help develop a much more refined and robust understanding of ‘common law’ administrative law that is not skewed towards an understanding coming out of the usual jurisdictions of comparison, especially for the benefit of ‘newer’ common law jurisdictions which are undergoing a more nascent development of administrative law and looking for inspiration on modes of development. It will also provide a more refined definition of ‘common law’ approaches to judicial review for studies cutting across the common law and civil law divide, which have until now tended to be driven by a ‘unitary’ or narrow understanding of ‘common law’ systems as a, more or less, unified group of systems with certain shared characteristics. This Chapter first engages with these restrictions in existing studies. It then moves on to look at specific questions that may be used to explore the degree of difference and diversity in approaches to judicial review in the common law world. The chapter concludes that multiple categories of common law systems are apparent once common law systems are studied from the perspective of divergence. While common law systems may share a set of vocabulary, there is greater variance and nuance in the approach to judicial review that needs to be appreciated. The conclusion maps out a possible typology of common law systems.
proceedings by anyone other than applicants directly and individually affected by either a legislative
provision or executive action: there has been little scope for what is known as 'public interest
litigation' (in all its various forms). This had been the landscape of public law adjudication in
Singapore until recently. However, in the past five years, the courts have had to consider challenges by
applicants in the absence of such a direct interest. Thus far, the discussion on these cases has focused
on broader issues of constitutional interpretation and what the cases indicate about constitutionalism
in Singapore. There has been little discussion on issues of standing and what this implies about the
role of public law adjudication in Singapore. This article will show how, while explicitly rejecting the
possibility of public interest litigation, the courts have provided some scope for developing a more
circumscribed form of 'representative' standing in serious cases of illegality or unconstitutionality
with built-in control features to prevent actions by 'busybodies' and ensure that the court does not
become involved in free-standing political debate. It will propose how these developments may
evolve over time, particularly, in a way that maintains the controls the courts have introduced thus
far.
that the recently developed ground is too hard-edged as currently formulated. The paper, therefore, proposes the introduction of a justificatory and balancing component to its usage, similar to that used in the context of proportionality. It also proposes a clarification of the kinds of situations that would trigger the use of this stronger ground of fairness.
review proceedings, or what this tells us about the relative involvement of the three institutions in the evolution of constitutional meaning. This article looks at the interaction between the different institutions following judicial review proceedings relating to particular legislation. The article considers cases where courts issued a finding of constitutional invalidity of legislation or policy and what the legislature and administration did to rectify it. This paper considers what these responses say about the relationship between the different institutions. In evaluating these cases, we will consider, inter alia, the pathways signposted in the judgments for the better enforcement of constitutional norms by the executive and legislature as well as the actions of the executive and legislature in any subsequent law-making process.
Includes contributions from over 30 of the leading figures in public law from academia and legal practice;
- Includes comparative analyses of recurring problems in judicial review together with case studies of law reform in the major common law jurisdictions;
- Features a section on administrative justice in China, a country so far under-explored in the public law literature;
The use and scope of judicial review of government action has transformed across the common law world over the last forty years. This volume takes stock of the transformation, bringing together over 30 leading figures from academia and practice to analyse the major issues surrounding the legal reforms from theoretical and comparative perspectives.
Coverage in the book spans the theoretical foundations of judicial review; the scope and functions of administrative justice; the conditions of judicial independence; recurring problems in legal doctrine; and issues in legal procedure. A final set of essays presents case studies of the experiences of reforming judicial review in different countries, including an extended section on judicial review in China.
Readership: Academics working on constitutional and administrative law. Practitioners working in the area of judicial review.