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

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

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.
   1. 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.
   2. 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. 
   3. 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.

(the article continues at the link below)