User:Reginalim2011/sandbox

Exceptions
The general rule is that the subject matter of a dispute must be justiciable before a court will hear the case. This is based on the principle laid down in Chng Suan Tze v Ministry of Home Affairs that all legal powers have legal limits. Hence, even if a subject matter is non-justiciable, there are exceptions where the courts will still review the case.

Abuse of unconstitutional exercise of Public Prosecutor's powers
Art 35(8) allows the Attorney-General to institute, conduct or discontinue any criminal proceedings. Hence, this confers upon the Attorney-General wide discretionary powers to prosecute. However, since unfettered discretion contradicts the rule of law, the Attorney-General’s powers are not absolute and are subject to legal limits. Under the doctrine of separation of powers, the judicial power and prosecutorial powers are separated and courts should not prevent the Attorney-General from exercising his prosecutorial powers. However, courts can still review the case if it can be shown that the prosecutorial powers were exercised in bad faith or where the exercise of its powers contravened any constitutional rights.

In Law Society of Singapore v Tan Guat Neo Phyllis which involved agent provocateurs and entrapment evidence, it was said that the act of admitting entrapment evidence itself does not preclude the courts from checking the exercise of prosecutorial power. The courts will still review the case if the Attorney-General condones agent provocateurs’ unlawful conduct by not prosecuting them and this may constitute an abuse of his discretion. The Attorney-General must exercise its powers in good faith when there is a strong public interest in the integrity of the legal process overriding the public interest in ensuring that the offender is convicted. Therefore, the Attorney-General should not abuse the legal process for extraneous purpose such as teaching the offender a lesson when the Attorney-General has insufficient entrapment evidence.

Furthermore, the Attorney-General’s prosecutorial powers may be subject to judicial review if it does not prosecu'te unlawful conduct of agent provocateurs as this is arguably a discriminatory treatment that infringes the offender’s right to equal treatment before and protection of the law which is guaranteed under Art 12(1) of the Singapore Constitution.

Clemency Power and Justiciability
Clemency power is a constitutional power vested in the Executive and according to the doctrine of separation of powers, it is outside the courts’ supervisory jurisdiction and hence, it is non-justiciable. While courts cannot review the merits of the clemency decision, it does not mean that the clemency power is an “extra-legal” power without any limits.

The courts can still review the clemency decision if it was shown to be exercised in bad faith or when specific procedural safeguards relating to death sentence cases which are stipulated in Art 22P have not been complied with. Art 22P(2) requires documents from the trial judge, the appellate court and the Attorney-General’s opinions to be sent to the Cabinet for consideration and subsequently advise the President on the exercise of the clemency power. The procedural requirements in Art 22P imply a constitutional duty on the Cabinet to consider the documents in good faith before advising the President.

The Singapore's position on the justiciability of clemency power is addressed in Yong Vui Kong v Attorney-General. where the applicant applied for a judicial review of the clemency decision. On the issue of bad faith, the Singapore Court of Appeal agreed with the judgment in Law Society of Singapore v Tan Guat Neo Phyllis that clemency power will be subject to judicial review if it was shown to be exercised in bad faith. In addition, it was held that if evidence were adduced to show that the Cabinet did not consider the offender's case or did not take into consideration the Art 22P(2) documents, the Cabinet would have breached Art 22P(2) and thus, the courts would be able to review the clemency decision which was otherwise non-justiciable.

Where a non-justiciable issue involves a justiciable matter
A dispute may, prima facie, involve a non-justiciable area but on a closer look, the courts may decide that there is a justiciable matter. In such cases, the courts will intervene and review the case. An example of this was given by Sudaresh Menon JC in Lee Hsien Loong v Review Publishing Co Ltd and another and another suit.

"Thus, where what appears to raise a question of international law in fact bears on the application of domestic law, that is something the court may well find justiciable."

Hence, even though an international law issue is generally considered non-justiciable, if the courts are able to discern an issue which pertains to domestic law, it will still satisfy the justiciability requirement.

Isolating a Pure Question of Law
Sundaresh Menon JC also gave another exception to the justiciability requirement and that is when the courts are able to isolate a pure question of law from what is seemingly a non-justiciable issue. While there seems to be some degree of overlap between this exception and the third exception which involves finding a justiciable matter in a non-justiciable issue, the judge seemed to have considered and thus grouped them as different exceptions.

However, the judge did not go further to explain this exception and neither was this exception applied or discussed in any Singapore's cases at the moment.