Administrative and Constitutional Law

• Date: 01 December 2013
• Author: THIO Li-ann BA (Oxford) (Hons), LLM (Harvard Law School), PhD (Cambridge); Barrister (Gray's Inn, UK); Professor, Faculty of Law, National University of Singapore.
• Published date: 01 December 2013

Introduction

1.1 There were major developments in both the fields of constitutional and administrative law in 2013. In relation to constitutional law, the Court of Appeal held that the Prime Minister did not have an unfettered discretion to call by-elections but had to call one within a ‘reasonable time’, in a decision which apparently discounted the intent of the constitutional framers in favour of the principle that all legal power had legal limits. The High Court affirmed the constitutionality of the law criminalising sodomy under s 377A of the Penal Code (Cap 224, 2008 Rev Ed) and confirmed that one singular test applied to the reading of the Art 12 equality clause (Art 12 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (‘Constitution’)), that of reasonable classification. In other words, there is no test based on a standard of heightened scrutiny. It was clear that in the mode of constitutional interpretation, the separation of powers principles operated to prevent the courts from intervening in a way which would entail their imposing a substantive ideology in place of what Parliament had decided and embodied in legislation.

1.2 The law on locus standi and judicial review was elaborated upon and clarified and in the field of administrative law, the doctrine of substantive legitimate expectations was endorsed in principle.

Scope of judicial review

1.3 What was at issue in Manjit Singh s/o Kirpal Singh v Attorney-General[2013] 2 SLR 844 was whether the power of the Chief Justice under s 90(1) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (‘LPA’) to appoint a disciplinary tribunal (‘DT’) to investigate complaints against lawyers was subject to judicial review. The appellants had objected to the appointment by the Chief Justice of Selvam to be the President of the DT, which centred on claims of bias. The appellants filed for leave to apply for a quashing order of the Chief Justice's decision to appoint Selvam, with the High Court judge in Manjit Singh s/o Kirpal Singh v Attorney-General[2013] 2 SLR 1108 holding that the Chief Justice's decision was not amenable to judicial review.

1.4 The Court of Appeal found that even if the Chief Justice's power under s 90(1) of the LPA was ‘ministerial’ (any duty not requiring independent judgment or discretion in its discharge), it did not follow that it would not be subject to judicial review: at [45]. To argue that ‘ministerial’ powers were beyond judicial review would be anachronistic: at [35]. They disagreed with the trial judge that the Chief Justice's power under s 90(1) was not amenable to judicial review because it was conferred on the Chief Justice in his judicial capacity: at [62]. The Chief Justice ‘wears many hats’ and sometimes acts in a non-judicial capacity, as under s 90(1): at [64]. Whether the Chief Justice is acting in his judicial capacity depends on the ‘nature of the function in respect of which the power is conferred upon the CJ’: at [65]. The s 90 power was ‘clearly administrative’: at [65].

1.5 Harry Woolf, Jeffrey Jowell & Andrew Le Sueur, De Smith's Judicial Review (Sweet & Maxwell, 6th Ed, 2007) at para B-008 stated that prerogative writs today may extend to functions previously considered ‘administrative’ or ‘legislative’. In fact, the Federal Court sitting in Singapore in Chief Building Surveyor v Makhanlall & Co Ltd[1968–1970] SLR(R) 460 had held that certiorari was available against a purely administrative decision: at [40]. Thus, there was no reason in principle why the exercise of a statutory power to appoint tribunal members should be beyond judicial review. The rule of law demands that courts be able to examine the exercise of discretionary power: Chng Suan Tze v Minister for Home Affairs[1988] 2 SLR(R) 525 at [86] (referred to at [52]).

1.6 Further, the fact that a power has a statutory source does not mean it is subject to judicial review, although statutory powers would ordinarily be amenable to judicial review in the absence of compelling reasons to the contrary: at [28]. Thus, reviewing certain English academic texts, the Court of Appeal agreed that bodies like commercial companies and trustees may possess statutory powers and duties, but without any public element, such that they would be beyond the purview of judicial review: at [30]–[31].

1.7 In general, judicial review is based not on the actual decision but the reasoning process (at [53]), and thus did not depend on whether the applicant had suffered harm because of an alleged administrative illegality. The Court of Appeal rejected the argument that the Chief Justice's power under s 90(1) of the LPA should not be amenable to judicial review even if the power was illegal, as ‘it may not necessarily lead to actual prejudice’ suffered by the appellants during the DT proceedings: at [53]. Judicial review avails where a decision-maker exceeds the legal limits of his power, and proof of actual harm to the applicant as a result of a impugned decision was not an essential prerequisite to judicial review: at [53].

1.8 The nature of the Chief Justice's role was to appoint members to the DT: the Chief Justice was not involved in the disciplinary proceedings themselves, and this was a relevant factor to consider: at [55] and [60]. The nature of the power conferred upon the Chief Justice under s 90(1) of the LPA was not judicial but administrative in nature: at [65]. Unless bad faith is shown, the appointment under s 90(1) is proper so long as the DT president falls within the list of persons set out in s 90(1). While an application for judicial review of the Chief Justice's exercise of powers under s 90(1) might delay disciplinary proceedings, this itself was not a sufficient basis to hold these powers were not susceptible to judicial review. Section 91A of the LPA which delayed judicial review until after the decision of the DT was delivered did not apply to s 90(1) powers; the Court of Appeal differed from the trial judge who considered that s 91A was evidence Parliament did not intend to subject the Chief Justice's s 90(1) powers to judicial review: at [62].

1.9 The threshold of a prima facie case of reasonable suspicion, in an application for leave, was a low one but a bare assertion without credible basis would not pass muster: at [72]. The appellants had noted that the names of Rajah & Tann LLP, Mrs V K Rajah and K M Pillai, a lawyer from Rajah & Tann LLP, featured in their submissions and that V K Rajah JA was close friends with Selvam but provided no documents to show how these people were involved in the DT proceedings and how apparent bias might arise. As such, a reasonable and fair-minded person in possession of the facts placed before the court would not have a reasonable suspicion that the appellants could not have a fair trial: at [77].

1.10 In Selvi d/o Narayanasamy v Attorney-General[2014] 1 SLR 458 at [20], the High Court held that an immediate family member may apply for judicial review with respect to the findings of a Coroner. The case concerned a death which took place in official custody; under s 25 of the Coroners Act (Cap 63A, 2012 Rev Ed), an inquiry is mandatory.

1.11 The High Court in Marplan Pte Ltd v Attorney-General[2013] 3 SLR 201 affirmed that judicial review did not lie over a High Court judge as this would mean that Singapore's superior court might exercise supervisory jurisdiction over itself, which would make a nonsense of the word ‘supervisory’: at [25]. This would constitute a relitigation of the issues, with the potential result that two courts of co-ordinate jurisdiction might reach conflicting decisions on the same issue. Ang J noted that the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (‘SCJA’) did not distinguish between the High Court and Court of Appeal in so far as both are considered superior courts. The High Court and the Court of Appeal are treated as a unitary Supreme (and superior) court where judges of the High Court may sit as a judge of the Court of Appeal under s 29(3) of the SCJA, and Judges of Appeal may sit in the High Court under s 10(3) of the SCJA: at [24].

1.12 Thus, the High Court is part of the Supreme Court under s 3 of the SCJA and, as a superior court, its decisions are not susceptible to judicial review (at [22]): Abdul Wahab bin Sulaiman v Commandant, Tanglin Detention Barracks[1985–1986] SLR(R) 7.

Alternative remedies

1.13 In general, a person must exhaust all alternative remedies before seeking judicial review of the decision of a public body. The High Court in Chiu Teng @ Kallang Pte Ltd v Singapore Land Authority[2014] 1 SLR 1047 (‘Chiu Teng’), which involved a challenge to quash the Singapore Land Authority's assessment of the differential payment (‘DP’) payable for lifting title restrictions on two plots of land, affirmed that there is no need to use an appeals process which is inapplicable to the matter at hand. The prescribed appeals process assumes that a developer is unsatisfied with a DP payable based on the Development Charge Table of Rates (‘DC Table’). In the instant case, the DP payable was not based on the DC Table and the appeals process would require a ‘spot valuation’ which was ‘precisely the outcome that the applicant seeks to impugn as the applicant argues that the DC Table should apply’: at [40].

1.14 Thus, there was no need to exhaust alternative remedies where ‘the applicant can distinguish his case from the type of case for which the appeal procedure is provided’ (R v Secretary of State for the Home Department, ex parte Swati[1986] 1 WLR 477 at 485, per Sir John Donaldson MR): at [40]. There was effectively no alternative remedy to seek on the facts of the case.

Natural justice

1.15 The Court of Appeal noted in Manjit Singh s/o Kirpal Singh v Attorney-General[2013] 2 SLR 844 at [88] that an ‘essential feature’ of natural justice was fairness, including the right to be heard, and what fairness demanded ‘will depend on the...