Administrative and Constitutional Law

• 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 2008
• Published date: 01 December 2008

Introduction

1.1 In 2008, the administrative law cases related to the scope of judicial review, the conditions under which judicial review could be ousted, when discretion is fettered and challenges against the disciplinary proceedings of professional bodies and social clubs, with a particular focus on allegations against procedural fairness.

1.2 The constitutional cases heard in 2008 clarified the scope of personal liberty in Art 9 of the Constitution of the Republic of Singapore (1999 Reprint) and discussed when the Art 9(3) constitutional guarantee of the right to counsel could be waived. There were also significant decisions pertaining to freedom of speech in relation to the restraints which contempt of court and defamation law imposed. What is worth noting is that the decisions considered developments in commonwealth jurisdictions like Australia, New Zealand, Malaysia and England which supported a more robust protection of free speech interests as integral to democratic society, while ultimately rejecting them. What emerges from the Singapore approach towards ‘political speech’ is the primacy of local conditions and that of protecting institutional reputation as foremost considerations in shaping free speech jurisprudence.

Ambit of judicial review: Jurisdictional and non-jurisdictional conditions

1.3 The issue arose as to whether the non-compliance with a statutory requirement under the Land Titles (Strata) Act (Cap 158, 1999 Rev Ed) (‘LTSA’) deprived the Strata Titles Board (‘STB’) of the jurisdiction to hear the application for the collective sale agreement in Ng Swee Lang v Sassoon Samuel Bernard[2008] 2 SLR 597.

1.4 The relevant sales and purchase agreement failed to state the method of distributing the sale proceeds as s 84A(1) of the Land Titles

(Strata) Act (Cap 158, 1999 Rev Ed) (‘LTSA’) required. The Court of Appeal held that the STB did have jurisdiction to hear all collective sales agreement under the Act: ss 84A(5)—84A(7) and 84A(9)—84A(12) of the LTSA.

1.5 The appellants had argued that a distinction had to be drawn between ‘conditions which go to jurisdiction and conditions which do not’: Ng Swee Lang v Sassoon Samuel Bernard[2008] 2 SLR 597 at [16]. The former will affect the STB”s jurisdiction while the latter will merely be a procedural irregularity which the STB may consider in deciding whether to give approval to a collective sales application. Counsel for the appellants referred to R v Ashton[2007] 1 WLR 181 (‘Ashton’), where the English Court of Appeal considered that the proper question to ask when confronted by a failure to take a required procedural step before a power is exercised was ‘whether the intention of the legislature was that any act done following that procedural failure should be invalid’ (Ashton, [4]—[6]): Ng Swee Lang v Sassoon Samuel Bernard[2008] 2 SLR 597 at [16]. If not, the next question was whether there was a real possibility that either party suffered prejudice on account of this procedural failure. If so, the court was to consider if it was just to allow the proceedings to continue.

1.6 The Court of Appeal upheld the learned judge”s decision that Pt VA of the Land Titles (Strata) Act (Cap 158, 1999 Rev Ed) contained nothing that was ‘expressly jurisdictional’, such that if a court acts without jurisdiction, the proceedings would be invalid: Ng Swee Lang v Sassoon Samuel Bernard[2008] 2 SLR 597 at [19]. In contrast, in R v Reilly[1982] QB 1208; [1982] 3 WLR 149; [1982] 3 All ER 27 (CA) (discussed in R v Ashton[2007] 1 WLR 181) which concerned s 127(1) of the Magistrates” Courts Act 1980 (c43) (UK), that section was ‘clearly jurisdictional’ in that the Magistrate”s Court would lack jurisdiction to hear a complaint outside the statutory six-month time period. The Court of Appeal approved the judge”s observation that to draw a distinction between conditions going to jurisdiction and those which did not would be ‘to resurrect the “mandatory/directory” classification’ which the Australian High Court considered had outlived its usefulness in Project Blue Sky v Australian Broadcasting Authority(1998) 194 CLR 355. The preferred approach was not to engage in formal distinctions but to ask the question, as expressed by Lord Steyn in R v Soneji[2006] 1 AC 340, what the consequences of non-compliance ought to be and whether Parliament could fairly be taken to have intended total invalidity: Ng Swee Lang v Sassoon Samuel Bernard[2008] 2 SLR 597 at [20]. This was basically a question of statutory interpretation where regard should be had to the legislative purpose, whether the legislature intended the consequences of a strict construction and the prejudice to private rights and public interests, if any.

1.7 The Court of Appeal rejected the argument that the judge had wrongly drawn an analogy between mandatory/directory classification and jurisdictional/non-jurisdictional classification: Ng Swee Lang v Sassoon Samuel Bernard[2008] 2 SLR 597 (‘Ng Swee Lang’) at [23]. Rather, the judge was stating that the modern approach was to ask whether it was the intention of Parliament that any act done in breach of a statutory provision be invalidated. The Court of Appeal approved of and applied this approach in asking whether it was the intention of Parliament that the non-stipulation of the distribution method in the sales and purchase agreement would deprive the STB of jurisdiction to approve the agreement: Ng Swee Lang, at [23].

1.8 The Court of Appeal proceeded to discern the legislative intention by closely examining the structure of s 84A(1) of the Land Titles (Strata) Act (Cap 158, 1999 Rev Ed) (‘LTSA’). Under Pt VA of the LTSA, the STB has the power to hear and approve or disapprove of collective sale applications made thereunder. It does not contain an express provision conferring jurisdiction; rather this was indirectly vested: Ng Swee Lang v Sassoon Samuel Bernard[2008] 2 SLR 597 (‘Ng Swee Lang’) at [25]. Thus, ‘the existence of a statutory power implies the existence of jurisdiction over the subject matter in relation to which the power is exercisable’: Ng Swee Lang, at [25]. It found that s 84A(1) was not a jurisdictional provision (this being implied from the power to hear collective sale applications in ss 84A(5)—84A(7) and 84A(9)—84A(12) of the LTSA). Rather it prescribed the basis on which the majority owners could apply to the STB for a collective sales order. It did not imply that a collective sales application cannot be made where the sales and purchase agreement does not specify the distribution method: Ng Swee Lang, at [31]. The correct question was to ask whether on its true construction, s 84A(1) gave the court a discretion to waive the respondents” omission to specify the distribution method in the sales and purchase agreement: Ng Swee Lang, at [31].

1.9 The Court of Appeal drew attention to an administrative law principle which related to that advanced by counsel in relation to jurisdictional or precedent facts. These were facts which had to be in existence before a tribunal had the jurisdiction to hear a matter where it had power to deprive persons of their rights or personal liberties. It noted that whether such an approach applied to bodies which had the power to confer rights or interest ‘may need further consideration.’ In any event, if the appellants had advanced this argument, the court would still have to be convinced that the specification of the distribution method was a jurisdictional or precedent fact: Ng Swee Lang v Sassoon Samuel Bernard[2008] 2 SLR 597 at [29].

Questions of law and fact

1.10 Under Singapore law, a workman who has been injured in the course of his employment has the choice of making a claim for workman”s compensation under the Workmen”s Compensation Act (Cap 354, 1998 Rev Ed) (‘WCA’) (now re-titled as Work Injury Compensation Act) or a common law action for damages. The aim of the WCA is to enhance the protection of workmen through providing for no-fault claims by injured employees against employers although nothing in it allows double recovery from the same accident.

1.11 In Pang Chen Suan v Commissioner for Labour[2008] 3 SLR 648, the appellant initially made a claim under the Workmen”s Compensation Act (Cap 354, 1998 Rev Ed) (‘WCA’) and later withdrew it to pursue a common law action, which was discontinued for various reasons. He then made another workman”s compensation claim, but outside the statutory limitation of one year: WCA, s 11(1). The Commissioner for Labour (‘Commissioner’) rejected the new claim on the basis that the workman had failed to show reasonable cause for not making the claim within the limitation period.

1.12 In examining parliamentary debates, the Court of Appeal noted that the Workmen”s Compensation Act (Cap 354, 1998 Rev Ed) (‘WCA’) was not designed ‘to penalise the workman for choosing to commence a common law action in preference to workmen”s compensation’ which was ‘invariably lower than damages’: Pang Chen Suan v Commissioner for Labour[2008] 3 SLR 648 (‘Pang Chen Suan’) at [15]. Instead, the WCA was meant to give the worker the opportunity to choose which remedy he wished to have. For a claim under the WCA, all the worker had to show was that the injury was sustained during the course of work: Pang Chen Suan, at [17]. Section 11 of the WCA further provides that notice of the accident should be given to the employer by the workman or on his behalf ‘as soon as practicable’ after it occurred and that compensation claims be made within one year from the date of the accident or the date of death. Section 11(4) provides that failing to make the claim within the limitation period would not bar proceeding ‘if it is found that the failure was occasioned by mistake, absence from Singapore or other reasonable cause’.

1.13 The situations to which s 11(4) applied had not been ‘the subject of judicial comment or decision’: Pang Chen Suan v Commissioner for Labour[2008] 3 SLR 648 at...