Administrative and Constitutional Law

AuthorTHIO Li-ann BA (Oxford) (Hons), LLM (Harvard Law School), PhD (Cambridge); Barrister (Gray's Inn, UK); Professor (Provost Chair), Faculty of Law, National University of Singapore.
Date01 December 2014
Published date01 December 2014
Citation(2014) 15 SAL Ann Rev 1

1.1 In 2014, the major developments in the field of public law pertained primarily to constitutional law. The equality guarantees embodied in Art 12 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (the Singapore Constitution) was the focal point for the majority of constitutional law cases. The decisions provide us with an elaboration of the nature of the reasonable classification test as a threshold test and the inter-relationship between Arts 12(1) and 12(2). A recurrent theme was the importance of resisting the judicialisation of politics as a facet the principle of separation of powers extant in the Singapore constitutional order.

1.2 The administrative law cases were generally applications of existing, well-established principles, though the justification for extending natural justice principles to contract law appears to rest on the importance of protecting important interests of the individual, rather than regulating a private body with some sort of public law function.

Scope of judicial review

1.3 Statutes may oust or truncate the scope of judicial review, which gives rise to the question of whether courts will defer to parliamentary intention or invoke constitutional or common law principles to circumvent such preclusive or limitation clauses.

1.4 Under s 33B(2)(b) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (MDA), the Public Prosecutor may issue a certification that an accused person has substantively assisted the Central Narcotics Bureau (CNB) in disrupting trafficking activities within or outside Singapore. Section 33(b)(4) provides:

(4) The determination of whether or not any person has substantively assisted the Central Narcotics Bureau in disrupting drug trafficking activities shall be at the sole discretion of the Public Prosecutor and no action or proceeding shall lie against the Public Prosecutor in relation to any such determination unless it is proved to the court that the determination was done in bad faith or with malice.

1.5 In Cheong Chun Yin v Attorney-General[2014] 3 SLR 1141 (Cheong Chun Yin), the applicant sought leave to bring judicial review proceedings against the Public Prosecutor (PP) who had determined that the applicant had not substantively assisted the CNB and had consequently not certified this to a court under s 33B(2)(b) of the MDA. The applicant and his accomplice had been convicted and sentenced to death for drug trafficking. If the applicant had a certificate that he had substantively assisted the police, the court would under s 33B(1)(a) of the MDA be able to impose life imprisonment rather than the death penalty on him.

1.6 The statute under s 33(B)(4) provides for judicial review only on the grounds of bad faith or malice and thus is a limitation clause. It is also accepted that the ground of unconstitutionality is available as an additional basis for challenging an exercise of discretion. The applicant argued, citing Re Application by Yee Yut Ee[19771978] SLR(R) 490 at [18][31] and Stansfield Business International Pte Ltd v Minister for Manpower[1999] 2 SLR(R) 866 at [21][22], that this clause did not oust judicial review of a decision made in excess or lack of jurisdiction: Cheong Chun Yin at [17]. That is, the applicant relied on the doctrine of jurisdictional error of law to circumvent s 33B(4): Cheong Chun Yin at [28]. The applicant argued that an error of law was committed as the PP had failed to make an allowance that the information provided by the applicant was not adequately investigated at that time and was not useless, and had failed to consider what value may have been gained from such information as may have been derived were there a proper investigation: Cheong Chun Yin at [18].

1.7 On the facts, the court held that the alleged errors of law related to the applicant's dissatisfaction over the way the CNB had conducted the investigations. The court would not review the adequacy of the investigations: Cheong Chun Yin at [32]. In any event, the evidence presented at trial did not support a finding that investigations were inadequate: Cheong Chun Yin at [34]. Nonetheless, the court appeared to hold that judicial review was limited to the grounds provided for in the statute (bad faith and malice) and unconstitutionality: Cheong Chun Yin at [31]. In other words, it appears that within the context of the MDA in relation to the power to certify substantive assistance, the court would treat parliamentary intention as determinative and not review an exercise of discretionary power on, eg, the grounds of Wednesbury unreasonableness.

Condition precedent and want of jurisdiction

1.8 The applicant in Zheng Jianxing v Attorney-General[2014] 3 SLR 1100 sought leave to file an application for a quashing order in respect of his admission to a Drug Rehabilitation Centre (DRC) in 2006 made by an order of the deputy director of the CNB on 11 May 2006 (the 2006 DRC order). It was because of this order that Zheng Jianxing (Zheng) was later subject to an enhanced punishment under s 33A(1) of the MDA.

1.9 Zheng argued that the exercise of discretion for the DRC order depended on the existence of an objective fact, that is, accurate results of urine tests conducted under s 31(4)(b) of the MDA. The applicant contended that the variance in the results of the two urine analysis certificates issued by the Health Sciences Authority (HSA) was so vast as to be well above the maximum 20% allowable difference: at [10]. As such, Zheng asserted that the deputy director should not have relied on these urine tests results and hence lacked authority to make the 2006 DRC order because of the absence of a precedent requirement.

1.10 The objective fact which forms the basis for the condition precedent for exercising the director's discretion under s 34(2)(b) of the MDA was that the director must have acted on either the result of the medical examination conducted on the subject under s 34(1) of the MDA or the results of both urine tests conducted following the s 31(4)(b) procedure. The tests must be positive for the presence of a controlled or specified drug before the director could under s 34(2)(b) of the MDA commit the person to a rehabilitative institution.

1.11 The High Court held that the director's right to exercise his discretion under s 34(2)(b) of the MDA arose provided two urine tests with positive results of the relevant drug were conducted. The director was the sole judge in deciding whether to make an order for admission to a DRC and the court should not review whether the director was correct in exercising his discretion, provided the director acted fairly, in good faith, and followed the statutory procedure: at [31]. Even the 20% variance between test results did not preclude the director from relying on the HSA certificates as these still constituted evidence of the presence of the relevant drug. It was the presence rather than the quantity of the drug which was at issue: at [32].

1.12 The applicant failed to make out a prima facie case of reasonable suspicion that the statutory condition precedent conditioning the exercise of the relevant discretion was not established. At the very least, the applicant had to provide some evidence of possible lapses in the conduct of the tests on the urine specimens, which the applicant did not: at [35]. The standard of proof at this threshold stage was low, but evidence and arguments provided at this stage were not to be skimpy or vague; rather, the fullest evidence and strongest arguments should be placed before the court: at [35], citing Teng Fuh Holdings Pte Ltd v Collector of Land Revenue[2006] 3 SLR(R) 507 at [24].

1.13 However, the application was dismissed because it was out of time, more than seven years late, given that O 53 r 1 (6) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) requires that an application for leave to apply for a quashing order should be made within three months after the date of the proceeding or unless the delay is accounted for to the court's satisfaction.

Exhaustion of internal remedies/ouster clause

1.14 Under the Immigration Act (Cap 133, 2008 Rev Ed), the controller has the discretion to grant a re-entry permit (REP) to a permanent resident (PR) of Singapore. The Immigration and Checkpoints Authority of Singapore (ICA) follows certain policies when issuing a REP, including the guideline that a PR will not automatically be granted a REP, and where a PR is under investigation or has been charged, convicted or is appealing against conviction, that a PR is not generally granted a REP until the matter is concluded: Tey Tsun Hangv Attorney-General[2015] 1 SLR 856 (Tey Tsun Hang) at [28]. A REP is required for a PR who leaves Singapore to return to Singapore as a PR under s 11 of the Immigration Act. A PR who leaves Singapore without a valid REP loses PR status: Tey Tsun Hang at [10]. The issue of granting REPs was the subject of Tey Tsun Hang.

1.15 Tey Tsun Hang (Tey), a Malaysian citizen, who was at the relevant time under investigation by the Corrupt Practices Investigation Bureau, made an application for a REP which was rejected. Under s 11(6) of the Immigration Act, an aggrieved person may appeal by petition in writing to the Minister whose decision shall be final.

1.16 Tey sought leave under O 53 of the Rules of Court to bring judicial review proceedings against the ICA, seeking an order to quash the cancellation of Tey's application for the renewal of his and his daughter's REP for breach of natural justice, on grounds of unreasonableness and a mandatory order requiring the respondent to reinstate his and his daughter's PR statuses and to consider and process Tey's application for the renewal of his and his daughter's REPs in accordance with procedural propriety.

1.17 Quentin Loh J noted that s 39A of the Immigration Act precluded judicial review of any act or decision of the Minister or controller under the...

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