The remedies available in a Singapore constitutional claim are the prerogative orders – quashing, prohibiting and mandatory orders, and the order for review of detention – and the declaration. As the is the supreme law of Singapore, the High Court can hold any law enacted by Parliament, subsidiary legislation issued by a minister, or rules derived from the common law, as well as acts and decisions of public authorities, that are inconsistent with the Constitution to be void. Mandatory orders have the effect of directing authorities to take certain actions, prohibiting orders forbid them from acting, and quashing orders invalidate their acts or decisions. An order for review of detention is sought to direct a party responsible for detaining a person to produce the detainee before the High Court so that the legality of the detention can be established.
The High Court also has the power to grant declarations to strike down unconstitutional legislation. Article 4 of the Constitution states that legislation enacted after the commencement of the Constitution on 9 August 1965 that is inconsistent with the Constitution is void, but the Court of Appeal has held that on a purposive reading of Article 4 even inconsistent legislation enacted before the Constitution's commencement can be invalidated. In addition, Article 162 places a duty on the Court to construe legislation enacted prior to the commencement of the Constitution into conformity with the Constitution.
There are two other more unusual remedies that may be granted. When a law is declared unconstitutional, the Court of Appeal may apply the doctrine of prospective overruling to prevent prejudice to an accused by overruling the law only from the date of the judgment but preserving it with regards to acts done prior to the judgment. In Canada, the Supreme Court has held that unconstitutional laws can be given temporary validity to prevent a legal vacuum caused by the voiding of laws until the legislature has had time to re-enact the laws in a constitutional manner. This remedy has yet to be applied in Singapore.
Damages and injunctions are not remedies that are available in constitutional claims in Singapore.
Supremacy of the Constitution
The Constitution of the Republic of Singapore. is the supreme law of the land. This is supported by Article 4 of the Constitution, which provides:
The court has the power and duty to uphold the provisions in the Constitution.. As the Constitution is supreme, the judiciary can hold any law laid down by Parliament, subsidiary legislation issued by a minister, or rules derived from common law as unconstitutional, and therefore void. The constitutionality of decisions and orders of public authorities can be challenged as well, as the Court of Appeal held in Eng Foong Ho v. Attorney-General (2009)..
Power of the judiciary to grant remedies
Powers of the High Court In Singapore, the High Court has the power to issue prerogative orders. These include mandatory orders which have the effect of directing public authorities to take certain actions, prohibiting orders that forbid them from acting, and quashing orders that invalidate their acts or decisions. ("SCJA"), s. 18(2) read with the 1st Sched., para. 1. The High Court also has the power to grant declarations to strike down unconstitutional legislation. ("ROC"), O. 15, r. 16.
Powers of the Subordinate Courts The Subordinate Courts have no "jurisdiction relating to the judicial review of any act done or decision made by any person or authority", ("SCA"), s. 19(3)(b). and do not have the power to grant prerogative orders.As regards District Courts, see the SCA, ss. 19(3)(b); and as regards Magistrate's Courts, see s. 52(2). Like the High Court, the Subordinate Courts may grant declarations of rights.SCA, ss. 31(2)(b) and 52(1B)(b)(ii). However, as Magistrate's Courts have no jurisdiction to hear matters that do not involve monetary claims, they cannot declare legislation unconstitutional.SCA, s. 52(1A)(a). On the other hand, it appears that District Courts may be able to do so as no such limitation applies to them, and declaring legislation to be void does not seem to come within the words "judicial review of any act done or decision made by any person or authority".
Previously, under section 56A of the Subordinate Courts Act ("SCA"), when a constitutional question arose in proceedings before the Subordinate Courts, the Courts could refer the question to the High Court and, meanwhile, stay the proceedings. However, this did not mean that the Subordinate Courts could not decide constitutional questions at all. In Johari bin Kanadi v. Public Prosecutor (2008),. the High Court held that the Subordinate Courts may decide such questions where the relevant constitutional principles have already been set out by superior courts. Where the principles have not been decided, the question should be referred to the High Court.Johari bin Kanadi, pp. 429–430, para. 9.
Current position in relation to criminal matters Section 56A of the SCA was repealed by the Criminal Procedure Code 2010 ("CPC") (now ) ("CPC"). with effect from 2 January 2011.CPC, s. 430 read with the 6th Sched., para. 105. For criminal cases, sections 395(1) and 395(2)(a) of the CPC have the same effect as the repealed section 56A. Questions of law concerning the Constitution can be referred by a Subordinate Court to the High Court for its decision at any stage of proceedings.Section 395(1) of the CPC states that "[a] trial court hearing any criminal case, may on the application of any party to the proceedings or on its own motion, state a case to the relevant court on any question of law", and s. 395(2)(a) states that "[a]ny application or motion made ... on a question of law which arises as to the interpretation or effect of any provision of the Constitution may be made at any stage of the proceedings after the question arises". Section 395(15) defines relevant court as meaning the High Court when the trial court is a Subordinate Court. In Chee Soon Juan v. Public Prosecutor (2011),. which concerned a criminal matter, the High Court held that since the Subordinate Courts lack the power to grant prerogative orders, they do not have jurisdiction to deal with the substantive issues of a constitutional challenge. Such questions should be referred to the High Court unless they are "frivolous, or ... made for collateral purposes or to delay proceedings, or if they otherwise constitute an abuse of process". The Court also cautioned against section 395 being used to circumvent the requirement that leave of court must be obtained to apply for prerogative orders (see below).Chee Soon Juan, pp. 958–959, para. 33.
It is also possible for a Subordinate Court to state a question of law directly to the Court of Appeal, thus bypassing the High Court. This particular procedure is not restricted to constitutional questions of law.CPC, s. 396(1).
Current position in relation to civil matters For civil matters, the repeal of section 56A means that the Subordinate Courts Act no longer stipulates that constitutional questions must be referred to the High Court. However, this continues to be necessary in Magistrate's Court proceedings because these courts lack jurisdiction to deal with constitutional questions, as mentioned above. Assuming that declarations can be sought from District Courts, decisions that have been made by these courts may be appealed to the High Court and the Court of Appeal in the usual manner.SCJA, ss. 20 and 21. Alternatively, a party apply to the High Court for the constitutional question to be heard in a separate action.
Challenging a public authority's act or decision as unconstitutional An applicant who alleges that a public authority's act or decision has infringed his or her constitutional rights may bring a judicial review case to the High Court challenging it. It is likely that the remedies sought will be one or more prerogative orders, though the applicant may also ask for a declaration. (Declarations are discussed below.) All remedies are granted at the Court's discretion.
Quashing orders The quashing order (formerly known as certiorari) is the most common remedy sought. A quashing order issued by the High Court invalidates a public authority's unconstitutional act or decision. A mandatory order may be linked to the quashing order so as to ensure compliance with the latter.Compare . In Chan Hiang Leng Colin v. Ministry of Information and the Arts (1996), ("Chan Hiang Leng Colin v. MITA"). the appellants sought leave to apply for a quashing order to invalidate an order banning publications of the International Bible Students Association, a Jehovah's Witnesses organisation, on the ground that it violated their right to freedom of religion protected by Article 15(1) of the Constitution. Leave was denied as the court held that the appellants had failed to establish a prima facie case of reasonable suspicion that the Minister had acted unlawfully or breached the Constitution.Chan Hiang Leng Colin v. MITA, p. 309, para. 46.
Prohibiting orders A prohibiting order (formerly known as a prohibition) prevents an unconstitutional act from being carried out by a public body. Hence, a key difference between a quashing order and a prohibiting order is that the former operates retrospectively while the latter operates prospectively. Where applicants are aware that unconstitutionality can potentially arise, a prohibiting order can be sought to stop the public body from acting unconstitutionally. Such an order will also prevent the same decisions from occurring in the future.Compare Leyland & Anthony, p. 457. In Singapore, there has yet to be any reported case in which an applicant sought a prohibiting order in a constitutional matter. However, in the administrative law context, in Re Fong Thin Choo (1991)Re Fong Thin Choo 1 S.L.R.(R.) 774, H.C. (Singapore). the High Court stated that the legal principles which apply to quashing orders are equally applicable to prohibiting orders.Fong Thin Choo, p. 781, para. 17.
Mandatory orders Upon finding that a decision or order of a public authority is unconstitutional, the High Court may grant a mandatory order (formerly known as mandamus) to compel the authority to perform its duties in a manner that is consistent with the Constitution. Although there has yet to be any constitutional case where a mandatory order has been granted, it is likely that the Singapore courts will adopt the same legal principles that apply in administrative law. In the latter, the Court has held that it cannot use a mandatory order to direct how and in what manner a public body should perform its duty.. Hence, the Court cannot direct the public body to adopt a particular decision but can only order the body to re-consider its prior decision without lapsing into the unlawfulness that affected it. This is based on the well-settled principle that a reviewing court is limited to determining the legality, and must not deal with the substantive merits, of a decision..
Orders for review of detention The unlawful detention of a person is a breach of his or her right to personal liberty guaranteed by Article 9(1) of the Constitution. An order for review of detention (formerly known as habeas corpus) can be sought to direct the party responsible for detaining the person to produce the detainee before the High Court so that the legality of the detention can be established. In Re Onkar Shrian (1969),Re Onkar Shrian [1968–1970] S.L.R.(R.) 533, H.C. (Singapore). the High Court held:Onkar Shrian, p. 538, para. 10, citing .