Administrative and Constitutional Law
| Citation | (2011) 12 SAL Ann Rev 1 |
| 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. |
| Date | 01 December 2011 |
| Published date | 01 December 2011 |
1.1 In the field of public law, the major 2011 developments lie in the field of constitutional law, particularly with respect to a confirmed shift in the approach towards balancing free speech and public confidence in the administration of justice with respect to the contempt of scandalising the court from the inherent tendency test to the more stringently framed real risk test. There were significant cases affirming the rule of law in requiring executive action to conform to principles of constitutional legality in the field of clemency powers and prosecutorial discretion. The issue of the correct test for locus standi where constitutional rights are concerned also arose.
1.2 In the field of administrative law, the cases in the main applied existing tests. The Rules of Court (Amendment) Rules 2011 (S 75/2011) were amended to permit declarations to be sought, under certain conditions, under O 53 applications.
1.3 Until 1 May 2011, as noted in UDL Marine (Singapore) Pte Ltd v Jurong Town Corp[2011] SGHC 2 at [26] (decision of 3 January 2011) (UDL Marine 1), Singapore had a bifurcated regime for obtaining remedies in an administrative law action under which prerogative remedies could be sought under O 53, but a declaration could only be obtained under a normal originating summons process. Under the current O 53(1), an application for a mandatory, prohibiting or quashing order may include an application for a declaration, but this shall not be granted unless leave to make the principal application has been granted in accordance with this Rule.
1.4 In UDL Marine (Singapore) Pte Ltd v Jurong Town Corp[2011] 3 SLR 94 (UDL Marine 2) the court has the discretion to determine if a delayed application for a quashing and mandatory order should be dismissed. If an applicant is able to adequately account for the delay, leave could still be granted: UDL Marine 2 at [42]. In general too, the test to be applied by a court facing an application for leave under O 53 r 1 of the Rules of Court is pegged at ascertaining whether the material before it reveals a prima facie case of reasonable suspicion that the applicant would obtain the remedies sought, as articulated in Chan Hiang Leng Colin v Minister for Information and the Arts[1996] 1 SLR(R) 294 at [25] (Colin Chan). Lai Siu Chiu J in UDL Marine 2 noted that the court had in recent times gone further than the Colin Chan Test in considering an application for judicial review on the merits whilst hearing the leave application, but this had been with respect to cases not facing factual disputes as in Yong Vui Kong v Attorney-General[2011] 1 SLR 1 at [30], where fully canvassed pure questions of law were involved. This was also the approach adopted by the High Court in Ramalingam v Ravinthran[2011] 4 SLR 196 at [5].
1.5 The High Court in UDL Marine 2 at [32] confirmed that it was appropriate at the leave stage to consider if the decision of a statutory body was amenable to judicial review, following the Court of Appeal decision of Public Service Commission v Lai Swee Lin Linda[2001] 1 SLR(R) 133 at [24] (Linda Lai). Not all actions of statutory bodies are subject to judicial review; the court will examine whether a statutory body is, on the facts, performing a public duty pursuant to its statutory mandate or acting in a capacity also available to a private party, eg, as an employer or party to a contract.
1.6 Pursuant to this, the court will examine the source of power with respect to the particular transaction in question. If this is statutory, the source of power test indicates that the decision will be subject to judicial review: UDL Marine 2 at [48]. This is not the sole test, as indicated in R v Panel on Take-Overs and Mergers; Ex parte Datafin plcELR[1987] QB 815 (Datafin) where the nature of power test was applied to find that an unincorporated association without a statutory source of power was subject to judicial review because of the public law nature of its functions in the regulation of take-overs and mergers, which had public law consequences: UDL Marine 2 at [49]. In other words, it was applied in Datafin to extend the reach of judicial review to bodies whose source of power was neither statutory nor prerogative in origins. Lai J stated that the nature test requires the court to consider whether the relevant decision involved an exercise of public law functions: UDL Marine 2 at [49]. As applied in Linda Lai, the nature test was not applied to extend the supervisory jurisdiction of the court, but rather to contract it, insofar as a statutory body was found not to be subject to judicial review because its decision-making was private in nature: UDL Marine 2 at [49]. That is, the Public Service Commission in Linda Laiwas acting not pursuant to its public duties but in a pure masterservant context: UDL Marine at [49].
1.7 In summary, Lai J stated that two tests may be applied to determine whether a decision is susceptible to judicial review: not the source of power of the actor in general, but the source of power in making the impugned decision. If this is based on statute or subsidiary legislation, judicial review lies. In addition, the nature test requires the court to consider if the decision involves an exercise of public law functions and if so, this decision is susceptible to judicial review: UDL Marine 2 at [50]. If a statutory body (general source of power) is exercising statutory functions (specific source of power), it would be susceptible to judicial review and the nature test would appear to be superfluous. However, if a non-statutory body exercises a power which could be described as a public law function independent of statutory or common law powers, it may, following Datafin, be subject to judicial review. This would be an extension of the supervisory empire of the courts. However, Datafin, as applied in Linda Lai and UDL Marine 2 is applied in a manner to contract judicial review by characterising the act of a public body as a private act, thus immunising it from review.
1.8 On the facts of this case, the High Court applied the source of power test in relation to the specific decision made by the Jurong Town Corporation (JTC), a statutory body, and found it was not subject to judicial review. This related to the refusal of the JTC as a landlord to renew a lease to the tenant, UDL Marine. If one were looking at the source of JTC power, this would derive from a statute and be subject to review. However, the learned judge in applying what she described as the source test examined the source of the particular power involved, that is, leasing power, and found that since the Jurong Town Council Act (Cap 150, 1998 Rev Ed) did not provide detailed criteria to guide leasing decisions, this entailed an exercise of private contractual rights (UDL Marine 2 at [56]), not subject to review. That is, the learned judge examined not the source of JTC power (statute), but the source of the particular power exercised to give effect to a particular transaction. The learned judge also applied the nature test in concluding that JTC in making lease-related agreements was not doing something a private individual would not be capable of doing. Just because a landlord factored in non-commercial considerations did not mean it was exercising a public law function as these again were considerations open to a private landlord to take in making leasing agreements: UDL Marine 2 at [57] and [60].
1.9 After determining that the dispute with the JTC was not a public law matter and hence not subject to judicial review on both the Source Test and the Nature Test (UDL Marine 2 at [61]), Lai J opined, obiter, on possible grounds of review. These included the accepted ground of irrationality. Lai J considered the law of legitimate expectations, observing that this could be used in at least two contexts. The first related to procedural fairness such that it would be a ground for judicial review if the applicant was deprived of a legitimate expectation without providing him with a fair hearing: UDL Marine 2 at [65]. With respect, this is a little confusing as a legitimate expectation is not tantamount to a fair hearing nor a synonym for it. One might have a legitimate expectation to, for example, be heard where a promise of a hearing is made or where this was the past practice of the decision making and the denial of such a hearing would be a denial of a legitimate expectation which the court may enforce.
1.10 The second understanding of legitimate expectations extends beyond according the applicant a fair hearing. Presumably, this refers to substantive legitimate expectations which extend beyond a promised procedure or an expectation that a certain procedure will be followed. Lai J, referring to the statements of Lord Woolf et al, in De Smith's Judicial Review (Sweet & Maxwell, 6th Ed, 2007) (UDL Marine 2 at [65]), said this was controversial because of competing tensions, entailing a need to check against inconsistent treatment which must be balanced against the undesirable effects of excessively fettering administrative discretion. Lai J expressed some doubt that the second understanding of legitimate expectations was part of our law (UDL Marine 2 at [66]), but took no decision on this as it was not in issue.
1.11 In Chee Soon Juan v Public Prosecutor[2011] 3 SLR 50 at [40], the High Court held that it was legal for the police to have a general policy which classified political activities as a class as being a greater threat to public order than commercial activities, provided that this policy did not fetter their discretion. That is, that they remained willing to consider the facts of each case.
1.12 With respect to disciplinary proceedings in relation to the medical profession, Phillip Pillai J in Lim Mey Lee Susan v Singapore...
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