Ouster clause

According to the doctrine of the separation of powers, one of the important functions of the judiciary is to keep the executive in check by ensuring that its acts comply with the law, including, where applicable, the constitution.

Ouster clauses prevent courts from carrying out this function, but may be justified on the ground that they preserve the powers of the executive and promote the finality of its acts and decisions.

In the case of Anisminic Ltd. v. Foreign Compensation Committee (1968), the House of Lords held that ouster clauses cannot prevent the courts from examining an executive decision that, due to an error of law, is a nullity.

Two cases decided after Anisminic have maintained the distinction between jurisdictional and non-jurisdictional errors of law, and it is not yet known whether the courts will eventually adopt the legal position in the United Kingdom.

The Chief Justice of Singapore, Chan Sek Keong, suggested in a 2010 lecture that ouster clauses may be inconsistent with Article 93 of the constitution, which vests judicial power in the courts, and may thus be void.

However, the legislature may attempt to exclude the jurisdiction of the courts by the inclusion of ouster clauses in the statutes empowering public authorities to act and make decisions.

The following are some examples of ouster clauses:The determination by the Commission of any application made to them under this Act shall not be called into question in any court of law.Decision of political party to be final and conclusive 18C.

[6] According to the 19th-century laissez-faire theory championed by A. V. Dicey, which Carol Harlow and Richard Rawlings termed as the "red-light approach" in their 1984 book Law and Administration,[7] there should be a deep-rooted suspicion of governmental power and a desire to minimize the encroachment of the state on the rights of the individuals.

[7]: 5 On the other end of the spectrum, there is the green-light approach derived from the utilitarian school of thought associated with legal philosophers such as Jeremy Bentham and John Stuart Mill.

One such communitarian goal achieved by ouster clauses is that it results in consistency and finality in the implementation of policy considerations by encouraging specialist bodies to act as adjudicators in certain areas of administration.

In the former situation, a total ouster clause precluded the courts from exercising their supervisory function and issuing any prerogative orders to quash the erroneous action.

Notwithstanding that the decision is by a statute made "final", certiorari can still issue for excess of jurisdiction or for error of law on the face of the record.In Anisminic, the House of Lords effectively held that any error of law made by a public body will render its decision a nullity, and an ouster clause does not oust the courts' jurisdiction in judicial review unless it clearly states so.

[26] While a statutory clause will be inconsistent with section 75(v) if it purports to prevent the court from determining whether a Commonwealth officer has engaged "in unlawful or unauthorized conduct" or acted "on the basis that an invalid decision is valid and enforceable",[27] a clause will not be unconstitutional if it has the effect of altering the procedural or substantive law that the court must apply[27] to ensure that "the impugned decision or conduct is in fact valid or lawful".

Therefore, it might be argued that ouster clauses, which are intended to make decisions by public authorities and other decision-makers final and unchallengeable before the courts, should be held void and ineffective as they deprive the aggrieved party of an avenue of seeking judicial review.

When the clause is clear, unambiguous and specific accepted notions of contract would bind the parties and unless the absence of ad idem can be shown, the other Courts should avoid exercising jurisdiction.

v Non-Metallic Mineral Products Manufacturing Employees Union (1980):[42] [W]hen words in a statute oust the power of the High Court to review decisions of an inferior tribunal by certiorari, they must be construed strictly ... they will not have the effect of ousting that power if the inferior tribunal has acted without jurisdiction or "if it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity": per Lord Reid at p. 171 [of Anisminic].

But if the inferior tribunal has merely made an error of law which does not affect its jurisdiction, and if its decision is not a nullity for some reason such as breach of the rules of natural justice, then the ouster will be effective.It is presently not known whether Singapore courts will eventually adopt the current legal position in the United Kingdom.

[43] The court had concluded that the ouster clause was ineffective in preventing judicial review of the minister's decision, as the plaintiff had not been given a fair opportunity to present its case with knowledge of the opponent's allegations.

[51] The consequences of such a narrow approach were recognized in the dissenting judgment by Lord Reid, in which he doubted whether an ouster clause could protect an order that had been obtained by corrupt or fraudulent means from being questioned in court.

He wrote:[52] In every class of case that I can think of the courts have always held that general words are not to be read as enabling a deliberate wrongdoer to take advantage of his own dishonesty.The decision in Anisminic, which held that total ouster clauses do not safeguard decisions affected by errors of law from judicial review, poses a challenge to the judgment in Smith, but the latter was affirmed by the Court of Appeal of England and Wales in R v Secretary of State for the Environment, ex parte Ostler (1976).

Lord Denning, the Master of the Rolls, explained that the rationale for upholding time limit clauses is that it is in the public interest to promote certainty of the executive's actions.

[54] As Lord Justice of Appeal Michael Mann explained in R v Cornwall County Council, ex parte Huntington (1992):[55] The intention of Parliament when it uses an Anisminic clause is that questions as to validity are not excluded.