Administrative and Constitutional Law

Citation(2012) 13 SAL Ann Rev 1
Publication Date01 December 2012
Date01 December 2012
AuthorTHIO Li-ann BA (Oxford) (Hons), LLM (Harvard Law School), PhD (Cambridge); Barrister (Gray's Inn, UK); Professor, Faculty of Law, National University of Singapore.
Introduction

1.1 In the field of public law, the major developments in 2012 lay in the field of constitutional law where there were significant cases relating to the scope of judicial review over the exercise of constitutional powers by the executive for which a limited review model was adopted, over locus standi for constitutional law cases and the concept of ‘constitutional violations’, and whether sentencing power was part of judicial power under Art 93 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (‘Constitution’). Other issues involved the scope of Art 144 in relation to the giving of loans by the Government and whether this engaged presidential and parliamentary oversight, judicial review over exercises of clemency power, whether there was a judicial role in controlling the exercise of executive discretion under Art 49 of the Constitution which relates to the calling of by-elections, where the emphasis on history or original intent was a determinative factor in constitutional construction. The meaning of ‘law’ under Art 9 and whether it could accommodate a principle of proportionality and the inter-relationship between Arts 4 and 162 was also judicially considered.

1.2 With respect to administrative law, the cases were mainly run-of-the-mill decisions. Judicial review was held to extend to non-statutory bodies applying the approach in R v Panel on Take-overs and Mergers; Ex parte Datafin plc[1987] QB 815 (‘Datafin’) and ministerial or administrative acts which did not by nature involve any discretion were not subject to challenges of bias. The law on declaratory relief arising out of the 2011 amendments to O 53 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (‘RoC’) was clarified.

Scope of judicial review: High Court and ministerial decisions

1.3 Judicial review is the procedure by which the High Court reviews the judicial and quasi-judicial functions of inferior courts and tribunals. When judicial review for a quashing order against a decision of the Chief Justice was sought in Re Manjit Singh s/o Kirpal Singh[2012] 4 SLR 81, the High Court held that this was inappropriate.

1.4 The relevant decision was that of appointing the President of a Disciplinary Tribunal (‘DT’) under the Legal Profession Act (Cap 161, 2009 Rev Ed) (‘LPA’). Applications under O 53 of the RoC were an inappropriate remedy against the High Court or Court of Appeal. Resort should be had to statutory appeal where available. If a High Court set aside the decision of another High Court, this would not be via O 53 but by an originating summons. Thus, where the Chief Justice made an order in his judicial capacity, it was not subject to judicial review.

1.5 Indeed, the Chief Justice in this instance was exercising an act that was ‘administrative’ or ‘ministerial’ in nature which was also not subject to review (at [6]). A ministerial duty or administrative function was one that did not involve the exercise of any discretion or judgment, as the Court of Appeal noted in Lim Mey Lee Susan v Singapore Medical Council[2012] 1 SLR 701 (‘Lim Mey Lee Susan’) at [46]–[48]. In addition, the scheme of the LPA as Parliament envisaged provides that there shall be no judicial review of anything the DT did, unless otherwise stipulated under s 91A of the LPA. This did not include the appointment of the DT President.

Bias and professional disciplinary committees

1.6 In Lim Mey Lee Susan, a medical doctor was brought before a disciplinary committee (‘DC’) of the Singapore Medical Council (‘SMC’) for overcharging a patient from Brunei and making false representations in invoices rendered to the patient. The proceedings before this first DC were terminated when the appellant contended that it had prejudged her submission of no case to answer. A second DC was appointed after the SMC sought the approval by e-mail of the SMC members to revoke the appointment of the first DC and appoint the second DC to continue disciplinary proceedings against the appellant. It stated that SMC members would be deemed to agree to this measure if they did not respond by a stipulated date. The appellant appealed the High Court's dismissal. The Court of Appeal found (at [29]) that the SMC had a statutory duty under the Medical Registration Act (Cap 174, 2004 Rev Ed) (‘MRA’) to appoint another DC after the first one recused itself and held that it had done so in accordance with the law. It was proper for the SMC to decide how to secure the approval of a majority of SMC members, as it did via a series of e-mails.

1.7 No bias could arise in relation to the appointment of the DC as the SMC has no discretion in the matter once it receives a complaint against a registered medical practitioner under s 39(1). In this instance, the SMC ‘merely acts as a conduit’ and therefore no issue of bias can arise with respect to the SMC discharging its statutory duties. These duties are ‘ministerial or administrative in nature’ which means they do not involve ‘the exercise of any discretion or judgment’ (at [47]). This also applies to its function in appointing a DC upon receiving a complaints committee's order that a formal inquiry into a complaint should be held by a DC (at [46]).

1.8 The only discretion the SMC has in this case was in selecting DC members. The appellant alleged (at [48]) that the appointment of the second DC was tainted by apparent bias, not because the second DC composed biased adjudicators, but because of the allegation that the person in charge of composing the second DC, Prof Satku, Director of Medical Services (‘DMS’), may have caused the SMC to appoint a second DC composed of persons in whom there was a ‘reasonable suspicion’ that they would or might be biased against the appellant. Prof Satku, who was then involved in both Ministry of Health, Singapore's preliminary investigation into the complaint and the subsequent appointment of the second DC, did not instigate the Permanent Secretary of Ministry of Health, Brunei, (‘MOHB’) to lodge the complaint against the appellant and also did not divert MOHB's complaint about the appellant's fees away from civil resolution of the dispute to resolution by the disciplinary process (at [43]–[44]). The only issue was whether Prof Satku had caused the SMC to appoint to the second DC members who might reasonably be suspected to be biased against the appellant (at [48]). However, neither the DMS nor SMC had any role to play in the disciplinary proceedings before the second DC so any allegation of bias should have been directed at the members of the second DC, which was the ultimate authority on the question of professional misconduct, subject to any appellate procedure, ie, the decision-maker with respect to the merits of the complaint.

Non-statutory bodies and susceptibility to judicial review

1.9 The question of whether the Singapore Exchange Securities Trading Ltd's (‘SGX-ST’) public reprimand of a director of a company listed on SGX-ST was a public function and thus susceptible to judicial review arose in Yeap Wai Kong v Singapore Exchange Securities Trading Ltd[2012] 3 SLR 565 (‘Yeap Wai Kong’). The applicant, a non-executive director of China Sky Fibre Chemical Limited, applied for leave to quash this reprimand on the basis that it was conducted in breach of natural justice. Philip Pillai J held that a full and fair hearing had been accorded the applicant on the facts.

1.10 What was of greater interest was the determination of whether SGX-ST was exercising a ‘public’ function so as to be amenable to judicial review, as judicial review does not avail the enforcement of private law rights. Instead, judicial review is the means by which the courts enforce the rule of law; its principles are a ‘Court-struck balance, faithful to both vigilance and restraint’ (quoting (at [5]) Michael Fordham, Judicial Review Handbook (John Wiley & Sons Ltd, 2nd Ed, 1997) at p 172).

1.11 Pillai J took note (at [6]) in the approach to determining the scope of judicial review of the shift in English case law from the ‘source’ of power to the ‘nature of power’ test to ‘take into account the changing public governance landscape’. He discussed the seminal English decision of Datafin which considerably expanded the supervisory empire of the courts by extending judicial review not only to statutory bodies or bodies created by prerogative powers, but also bodies like the London Panel on Take-Overs which operated the City Code on Take-overs and Mergers (‘the Panel’). This body de facto exercised ‘what can only be characterised as powers in the nature of public law powers’: Datafin at 828, per Sir John Donaldson MR. The Take-over Panel operated without ‘visible means of legal support’ (Datafin at 824), oversaw a very important part of the UK financial market and had neither statutory, prerogative or common law powers; neither was it in a contractual relationship with those in the financial market (Datafin at 825). It wielded enormous power as it was the author of the City Code, investigated alleged breaches of it and threaten sanctions which lacked a legally enforceable base: Yeap Wai Kong at [10]–[11].

1.12 As Pillai J noted (at [9]), ‘In the modern era, public policy is increasingly effected not only by government and statutory bodies but also through self-regulating entities in sectors where the domain nature and complexity of the sector requires front-line expertise coupled with back-line regulators to regulate the relevant sector’. He pointed out (at [12]) that Sir John Donaldson MR in Datafin was ‘mindful that financial markets required speed and certainty of decisions’ such that the decisions of the Panel in Datafin should be treated as valid and binding until set aside: Datafin at 840. Nonetheless, judicial review has expanded, as an exercise in ‘upholding the rule of law by adjusting to meet changing public governance landscapes’ (at [16]). This shifts the function of judicial review from ensuring...

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