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1.  SEPTEMBER 2019 Issue
p.289

Special Feature: Symposium on Contemporary Issues in Public Law: Introduction: Contemporary Issues in Public Law—Theory, Doctrine and Practice
Swati Jhaveri  •  [2019] Sing JLS 289 (Sep)
The special symposium sections of this and the September 2020 issues of the Singapore Journal of Legal Studies bring together a collection of papers that look at contemporary issues relating to public law in Singapore. In addition to looking at issues of theory and doctrine, the symposium will consider issues relating to public law litigation. Public law litigation remains an under-explored area in public law scholarship and one that is ripe for discussion. Not only has there been an increase in the number of applications for judicial review, there has also been an increasing diversity in the issues mooted in courts in recent years. For example, in the recent past, the courts have had to consider a challenge by a member of a particular geographical constituency of the constitutionality of the executive's decision not to call a by-election on the vacation of a parliamentary seat for that constituency; a challenge by a homosexual couple of the constitutionality of a provision of the Penal Code (Cap 224, 2008 Rev Ed Sing) restricting homosexual conduct in the absence of any criminal proceedings under the provision against them (with more challenges pertaining to section 377A of the Penal Code currently on the docket); a challenge by a member of an opposition political party of the constitutional vires of a loan made by the executive to an international funding body; a challenge by members of the Hindu religion of a ban on the use of musical instruments during an annual religious procession; a challenge by a Sikh prisoners' counsellor of a policy on hair for prisoners that affected members of a particular religion; a challenge by a potential electoral candidate on the absence of a by-election on the vacation of a seat in a group representation constituency; and challenges to the validity of constitutional amendments relating to the elected presidency.

2.  SEPTEMBER 2019 Issue
p.294

Special Feature: Symposium on Contemporary Issues in Public Law: The Theoretical Foundations of Judicial Review in Singapore
Kenny Chng  •  [2019] Sing JLS 294 (Sep)
The theoretical foundation of judicial review of administrative action has been the subject of fierce debate among English scholars, which is also the source jurisdiction of much of public law in Singapore. In contrast, there is comparatively little attention paid to the question of the particular theoretical foundations of judicial review in Singapore. Indeed, there is an inclination in Singapore case law and academia towards importing English theories of judicial review. Accordingly, this paper aims to contribute to the formulation of a proper theoretical foundation for judicial review in Singapore. It argues that with a proper understanding of the competing English theories of judicial review, it will be apparent that they are not readily transplantable to Singapore. As such, a unique theory of judicial review stands to be formulated in Singapore. A proper articulation of judicial review theory can have significant consequences for judicial review doctrine; this paper uses case law relating to ouster clauses to exemplify this point.
[Full Text]

3.  SEPTEMBER 2019 Issue
p.316

Special Feature: Symposium on Contemporary Issues in Public Law: Standing Up for Your Rights: A Review of the Law of Standing in Judicial Review in Singapore
Benjamin Joshua Ong  •  [2019] Sing JLS 316 (Sep)
There are two types of rules on standing to apply for judicial review of legislation or executive action on constitutional grounds. 'Interest-based' rules grant standing to a person who can demonstrate a 'sufficient interest' in the subject matter of the application. 'Rights-based' rules require the applicant to identify a specific constitutional right vested in him that has allegedly been violated. Singapore's standing rules are now rights-based. Rights-based standing rules are distinctively advantageous as they provide a forum for the courts to develop the content of constitutional rights as part of the standing inquiry; such development is not always possible at later stages of the litigation process. Unfortunately, this benefit of rights-based standing rules is obscured because Singapore's standing rules are overly complicated and not doctrinally consistent. This paper argues for a simplification of the present standing rules to fully realise the benefit of rights-based standing rules. While the paper focuses on judicial review on constitutional grounds, it concludes with observations on how standing rules may be similarly clarified in the field of administrative law and without abandoning the rights-based framework.

4.  SEPTEMBER 2019 Issue
p.351

Special Feature: Symposium on Contemporary Issues in Public Law: Revisiting Taxonomies and Truisms in Administrative Law in Singapore
Swati Jhaveri  •  [2019] Sing JLS 351 (Sep)
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 categorisation 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.

5.  SEPTEMBER 2019 Issue
p.377

Intellectual Property Law and Post-Scarcity Society
Barton Beebe  •  [2019] Sing JLS 377 (Sep)
Rapid technological progress has shifted discussion of the possibility of "post-scarcity society" from science fiction novels and utopian manifestoes to the pages of our newspapers and now to our law reviews. Commentators imagine a world in which three-dimensional printing, advanced robotics, synthetic biology, and artificial intelligence will enable the low-cost at-home manufacture of nearly all commodities and provision of nearly all services. This lecture considers the implications of postscarcity society for law and specifically for intellectual property law. It focuses on the likely social role of intellectual property law in a post-scarcity society and on the ways in which intellectual property law will likely work to undermine the socially progressive promise of post-scarcity.
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6.  SEPTEMBER 2019 Issue
p.390

Full Powers and the Constitutional Doctrine of Implied Amendments
Benjamin Low  •  [2019] Sing JLS 390 (Sep)
This article makes the case for the applicability of the doctrine of implied amendments to the Constitution of Singapore. The first part of this article tracks the origins and judicial development of the doctrine of implied amendments across the common law jurisdictions of Australia, Sri Lanka and Jamaica. The second part analyses whether the doctrine of implied amendments is applicable within the constitutional paradigm of Singapore based on a plain, textualist approach towards the Singapore Constitution. It also evaluates and analyses the historical academic and judicial treatment of the doctrine in Singapore, if any. The final part explores the normative justifications for adopting the doctrine of implied amendments, namely that it upholds the 'flexible constitutionalism' that characterises Singapore's constitutional system, and best weds the legal nature of the Westminster system of parliamentary democracy and sovereignty to the concept of a legal system predicated on constitutional supremacy.

7.  SEPTEMBER 2019 Issue
p.423

The Right to Confront One's Accusers: Did Sir Walter Raleigh Die for Nothing?
Peter Mirfield  •  [2019] Sing JLS 423 (Sep)
The right to confront one's accusers is granted widely by international and European human rights conventions, as well as by the US Constitution's 6th Amendment, though not recognised, at least explicitly, by Singapore law. This article argues for a non-instrumental view of that right, ie one not solely designed by reference to the hearsay rule, enlisting the remarkable trial of SirWalter Raleigh, in 1603, for treason to support the case, in principle, for such a view being taken. The article goes on to consider the confrontation right in three jurisdictions, namely the US, the European Court of Human Rights and England, where very different views of it have been taken. It then raises the possibility that some recent reforms to Singapore law entail confrontation issues. It concludes that, whatever else is done about the right to confrontation, it should, just like other human rights, be taken seriously.

8.  SEPTEMBER 2019 Issue
p.440

Institutions Supporting Constitutional Democracy: Some Thoughts About Anti-Corruption (and Other) Agencies
Mark Tushnet  •  [2019] Sing JLS 440 (Sep)
Classical constitutional theory identified three functions of government—law-making, lawenforcement, and adjudication of legal disputes—and assigned them to three distinct branches of government. As this tripartite framework began to break down over the course of the twentieth century, constitutional theorists identified a fourth function—the protection of the constitution itself. The corruption of high-level public officials can undermine democracy, in large part by generating public cynicism about the possibility that government can act for the general good. In principle, a structurally independent institution suggests itself as the solution, such as electoral commissions and anti-corruption institutions. This paper presents two case studies of institutions supporting democracy in South Africa and Brazil. It suggests that those who design these institutions, and those who staff them, should be sensitive to the complicated interactions between independence, necessary to ensure that high-level corruption comes under scrutiny, and accountability, necessary to ensure that anti-corruption investigations are well-integrated into the nation's system of government as a whole.

9.  SEPTEMBER 2019 Issue
p.456

Case and Legislation Notes: Love's Labour and Lady Luck: My Luck, Your Luck or Our Luck?— BOI v BOJ
Chan Wing Cheong  •  [2019] Sing JLS 456 (Sep)
This case note reviews the Court of Appeal decision in BOI v BOJ on whether lottery winnings can be divided as a matrimonial asset upon dissolution of marriage, and if so, how they should be allocated between the former spouses.

10.  SEPTEMBER 2019 Issue
p.464

Case and Legislation Notes: Not Getting Lost in the "Park": Wrotham Park Damages Demystified— Turf Club Auto Emporium Pte Ltd v Yeo Boong Hua
Ivan Sin  •  [2019] Sing JLS 464 (Sep)
Since its incarnation in Wrotham Park Estate , the precise conceptual foundation and contours of negotiating damages have over the years remained somewhat obscure. Following the lead of the UK Supreme Court in One Step , the Herculean tasks of furnishing a sound theoretical rationalisation for and delineating the boundaries of negotiating damages were undertaken by the Singapore Court of Appeal in Turf Club . This note unpacks the Singapore case, places it in comparative context, and investigates the extent to which its judicial treatment on negotiating damages has departed from the doctrinal route prescribed by its English counterpart. From a comparative law perspective, the juxtaposition of Turf Club alongside One Step also helpfully illustrates the level of intellectual and analytical rigour that is exemplary for any jurisdiction aspiring to build up an autochthonous legal system.

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