Administrative and Constitutional Law

• Author: THIO Li-ann BA (Oxford) (Hons), LLM (Harvard Law School), PhD (Cambridge); Barrister (Gray's Inn, UK); Provost Chair Professor, Faculty of Law, National University of Singapore.
• Date: 01 December 2015
• Published date: 01 December 2015

Introduction

1.1 The major developments in the field of public law in 2015 related primarily to the field of constitutional law as administrative law cases basically applied existing principles.

1.2 With respect to constitutional law, most cases involved Pt IV liberties pertaining to Arts 9, 12, 14 and 15 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (‘the Constitution’). The primacy of text and historical intent were affirmed as methods of constitutional interpretation as well as the principled judicial commitment not to engage in legislation by interpretation, which reflects the Singapore model of the separation of powers. The dualist commitment to treating international law and municipal law as distinct spheres of law was underscored and applied to peremptory norms. An objective test of review predicated on the rule of law principle was applied to preventive detention cases under the Criminal Law Temporary Provisions Act (Cap 67, 2000 Rev Ed) (‘CLTPA’) where an order for detention was found to be illegal for falling without the ambit of conduct contemplated by the Act. In the field of contempt of court and ‘scandalising’ the court, the ‘real risk’ test was applied and affirmed, and ‘fair criticism’ was treated as an element of liability rather than as a defence. With respect to political libel, further guidance was shed on calculating the quantum of damages by taking into consideration not only the fact that the object of the speech might be a ‘public person’ with higher reputational interests but also the situation and credibility of the speaker. What also warrants mention is the calibrated form of ‘balancing’ in a case involving religious liberty, which is distinct from previous more ‘categorical’ approaches in favour of statist considerations.

ADMINISTRATIVE LAW

1.3 Some of the cases where decisions were found to be ultra vires were straightforward as in the case of Tan Lip Tiong Rodney v Commissioner of Labour[2015] 3 SLR 604. An injured employee lacked the mental capacity to decide whether to make a claim under the statute or under common law. His next of kin also lacked the requisite capacity to do so on his behalf as they had not been duly appointed as deputies by the court under the Mental Capacity Act (Cap 354, 2009 Rev Ed). Therefore, when the Commissioner of Labour issued a notice of assessment in response to the next of kin's claim to collect compensation under the Work Injury Compensation Act (Cap 345, 2009 Rev Ed) for the injured employee, this notice was issued ultra vires and hence a nullity: at [46].

1.4 The High Court in Wham Kwok Han Jolovan v Attorney-General[2016] 1 SLR 1370 affirmed the principle that a quashing order could only apply with respect to a decision or determination, and held that a police warning had no legal effect and did not affect the rights or liabilities of its recipient. It constituted no more than the opinion of the relevant authority that the recipient had committed an offence, that of allowing foreigners to participate in a vigil at Hong Lim Park, contrary to para 4(1)(b) read with para 4(2) of the Public Order (Unrestricted Area) Order 2013 (S 30/2013) (‘the Order’). Wham was given a warning which communicated to the recipient that if he participated in conduct prohibited by law in the future, ‘leniency may not be shown to him and he may be prosecuted for it’: at [33]. However, this warning was not binding on the recipient and did not amount to a pronouncement of guilt or factual finding. The recipient could dispute the appropriateness of the warning by sending a letter to the Central Police Division: at [34]. Further, the Attorney-General was not bound to consider a prior warning in making decisions to prosecute: at [37]. The High Court also stated (at [44]) that courts should not take prior warnings into account during sentencing. It concluded (at [45]) that there was no decision for the court to quash.

Exhaustion of domestic remedies

1.5 In general, parties must exhaust domestic remedies before applying for judicial review. In Tey Tsun Hang v National University of Singapore[2015] 2 SLR 178 (‘Tey Tsun Hang’), the High Court was of the opinion that the sacked professor would not be given leave for judicial review because he had failed to pursue his alternative remedies. These included petitioning his employer, the National University of Singapore (‘NUS’), for reinstatement and, if he thought NUS had breached the employment agreement, commencing an action for breach of contract: at [48].

Time limits and leave to apply for judicial review: Order 53 r 1(6) of the Rules of Court

1.6 The Court of Appeal in Per Ah Seng Robin v Housing and Development Board[2016] 1 SLR 1020 (‘Per Ah Seng Robin’) departed from the High Court's decision ([2015] 2 SLR 19) that the appellants had applied for leave for a quashing order out of time, after the terms of O 53 r 1(6) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) which state:

Notwithstanding the foregoing, leave shall not be granted to apply for a Quashing Order to remove any judgment, order, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made within 3 months after the date of the proceeding or such other period (if any) as may be prescribed by any written law or, except where a period is so prescribed, the delay is accounted for to the satisfaction of the Judge to whom the application for leave is made; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the Judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired. [emphasis by the Court of Appeal omitted]

1.7 In calculating the stipulated three-month period, it is accepted that time generally runs from the date of the impugned decision, or where a multi-step decision process is involved, from the date of the final step in that process: at [51]. However, the Court of Appeal noted (at [51]) that this was ‘not an inflexible or unyielding rule’. In UDL Marine (Singapore) Pte Ltd v Jurong Town Corp[2011] 3 SLR 94 (‘UDL Marine’), the court had permitted time to start running later as the respondent had demonstrated conduct indicative of a willingness to reconsider its earlier decision: Per Ah Seng Robin at [52]. Even where the Jurong Town Corp had indicated in its first rejection letter that its decision was final, its subsequent conduct demonstrated that it was open to reconsidering this decision.

1.8 On the facts of Per Ah Seng Robin, the Court of Appeal found that even though the Housing and Development Board (‘HDB’) had informed the appellants in writing on various occasions that the Minister's decision was final and not open to review, this was ‘a mere reiteration’ of the HDB's and Minister's legal positions under s 56 of the Housing and Development Act (Cap 129, 2004 Rev Ed) (‘HDB Act’). It did not ‘necessarily’ indicate they would not be open to reconsidering the compulsory acquisition of the flat: Per Ah Seng Robin at [56].

1.9 Indeed, on the evidence, the HDB's ‘course of conduct as a whole’ indicated it was willing to reconsider its decision: Per Ah Seng Robin at [56]. This was evident in the long-drawn-out process where the HDB sought more clarificatory information from the appellants and met Per many times after the Minister's letter of 14 March 2011 which had rejected the appellant's appeal. As late as 2013, the HDB was prepared to give Per time to submit further relevant information which would be considered: Per Ah Seng Robin at [56]. The Court of Appeal agreed with the appellant that the date from which the three-month period in O 53 r 1(6) should be reckoned was the date of the last correspondence, 4 April 2014, the date of the final rejection. On this reckoning, the appellants were well within the three-month period as they had commenced Originating Summons No 440 of 2014 on 15 May 2015.

1.10 Even if time was taken to run from 11 March 2011 when the Minister's letter was issued, the Court of Appeal stated their view that the appellants had satisfactorily accounted for the delay. This is because the appellants were ‘continuing to engage the HDB’ to persuade it to change its mind and ‘thus could not be expected to commence litigation’: Per Ah Seng Robin at [58]. The appellants had sought non-legal avenues of redress, such as approaching their Member of Parliament (‘MP’) for help, and the Court of Appeal noted that ‘a certain measure of latitude should be granted to applicants who seek to resolve disputes amicably without resorting to judicial review proceedings’: Per Ah Seng Robin at [60]. There were therefore grounds to suggest that the HDB was open to reconsidering its decision.

Substantive grounds of review: Illegality and irrationality

1.11 The Court of Appeal in Tan Seet Eng v Attorney-General[2016] 1 SLR 779 (‘Tan Seet Eng (CA)’) at [77]–[82] clarified that ‘illegality’ and ‘irrationality’ were separate heads of review, even if they overlapped, in that a decision could be ‘both illegal and irrational at the same time’: at [81]. Illegality (at [80]):

… serves the purpose of examining whether the decision-maker has exercised his discretion within the scope of his authority and the inquiry is into whether he has exercised his discretion in good faith according to the statutory purpose for which the power was granted, and whether he has taken into account irrelevant considerations or failed to take account of relevant considerations.

Conversely, irrationality (at [80]):

… is a more substantive enquiry which seeks to ascertain the range of legally possible answers and asks if the decision made is one which, though falling within that range, is so absurd that no reasonable decision-maker could have come to it.

1.12 In the immediate case, applying an objective test of review, the Court of Appeal found that the grounds put forward...