Administrative and Constitutional Law
| Citation | (2004) 5 SAL Ann Rev 1 |
| Published date | 01 December 2004 |
| Date | 01 December 2004 |
| Author | THIO Li-ann BA (Oxford) (Hons), LLM (Harvard), PhD (Cambridge); Barrister (Gray’s Inn); Associate Professor, Faculty of Law, National University of Singapore. |
1.1 In the field of administrative law, the cases related primarily to the generally more robust role of the High Court in statutory appeals emanating from the disciplinary committees of medical and accountancy professional bodies as provided under the Medical Registration Act (Cap 174, 1998 Rev Ed) and the Accountants Act (Cap 2, 2001 Rev Ed) in Chia Yang Pong v Singapore Medical Council[2004] 3 SLR 151 and Ling Uk Choon v Public Accountants Board[2004] 3 SLR 517 respectively. Other issues examined included the limits to judicial review as not every actor or every decision made in the course of an administrative action is subject to judicial review. The actor must be under a decision-making duty which produces the ‘substantive’ administrative action; after identifying this, it is necessary to ascertain whether more appropriate legal remedies, like appeal processes, are available. Whether the medical certification of the fitness of a convicted person to receiving caning as a punishment raised a judicially-reviewable question was discussed in Tan Eng Chye v The Director of Prisons[2004] 2 SLR 640 and Tan Eng Chye v The Director of Prisons (No 2)[2004] 4 SLR 521. A challenge to the finding that there had been a misuse of discretion on substantive grounds of unreasonableness was upheld in AG v Ng Hock Guan[2004] 3 SLR 253.
1.2 The chief constitutional issue judicially determined pertained to the constitutionality of the mandatory death sentence or capital punishment in PP v Nguyen Tuong Van[2004] 2 SLR 328 and Nguyen Tuong Van v PP[2005] 1 SLR 103. This implicated the scope of the equal protection clause and the requirement that the deprivation of life should be ‘in accordance with law’, as enshrined in Arts 12 and 9 of the Constitution of the Republic of Singapore (1999 Rev Ed) (‘the Constitution’). The cases are instructive not merely for interpreting the scope of these constitutional liberties, but for the broad range of sources resorted to in interpreting the Constitution, including foreign case law and international human rights sources. The cases also addressed the inter-relationship between domestic law and international law in terms of which field assumes primacy before the national courts. This is helpful, as the Singapore Constitution does not contain explicit provisions
which address the status of international law within the municipal context. Subsidiary issues discussed included understandings of the separation of powers principle and the scope of presidential pardoning powers under Art 22P in relation to the Art 93 judicial power clause. In another case, the scope of prosecutorial discretion was examined, as was the appropriate judicial check for allegations of executive malpractice.
1.3 The issue of the legitimate scope and function of judicial review arose in various cases. Judicial review traditionally extends not to the substantive merits of a decision but its legality, that is, the process by which the decision was arrived at. This is to preserve the autonomy of decision-making bodies. Typically, courts are more ready to review errors of law as this falls within the scope of their competence, to ensure that decision-making power is exercised on the correct legal basis, and to quash relevant errors of law which affected the decision itself: Page v Hull University Visitor[1993] AC 682. Factual findings based on insufficiency of evidence may also constitute a justiciable legal error, although judicial scrutiny of a mixed error of law and fact may not be as intense as that accorded errors of law, out of deference to the fact-finding role and capabilities of lower tribunals and other administrative actors.
1.4 When an appeal is made to the High Court to review the decision of a disciplinary body constituted by a statutory source, the role of the High Court is not to be confined to ascertaining whether natural justice rules have been breached or whether the decision of the disciplinary body has been honestly reached. In this context, the scope of review is enlarged by the right of appeal pursuant to which the High Court is empowered on appeal to hold a rehearing according to O 55 rr 1 and 2 of the Rules of Court (Cap 322, R 5, 2004 Rev Ed), as noted in Ling Uk Choon v Public Accountants Board[2004] 3 SLR 517 on the basis of s 36 of the Accountants Act (Cap 2, 2001 Rev Ed). Here, two accountants were found guilty by an inquiry committee of improper conduct under s 34(1)(c) of the Accountants Act. Under the terms of the Act, s 34(1)(c) provides that upon considering the report of an inquiry committee, where the Public Accountants Board (‘the Board’) is satisfied that a public accountant is guilty of improper conduct which, in the Board”s
opinion, ‘renders him unfit to be a public accountant or would bring the profession … into disrepute’, the Board is entitled, after affording a reasonable opportunity of being heard, to exercise certain powers provided for in s 34(2).
1.5 Affirming the UK case of Fox v General Medical Council[1960] 1 WLR 1017, which supports the view that judicial powers in relation to statutory appeals transcend procedural ultra vires, Woo Bih Li J agreed that some ‘measure of precedence’ should be accorded to the tribunal of first instance which had seen and heard the witnesses, as opposed to an appellate court which was confined to studying the record of evidence: at [33]. He noted that rehearing was not a matter of hearing a case afresh but rather a rehearing based on documents where the court reviews the official transcript of the evidence, the judge”s notes and the grounds of the decision: at [29].
1.6 Woo J, as a matter of statutory construction, found that the inquiry committee had incorrectly read s 34(1)(c) of the Accountants Act. This was because the inquiry committee assumed that if the appellants were not entitled to retain the documents, despite their mistaken but genuine belief they were under a duty of disclosure regarding account irregularities, that this was ipso facto improper conduct tantamount to the statutory requirement of bringing ‘the profession of public accountancy into disrepute’. Under s 34(1)(c) itself, the Public Accountants Board rather than the inquiry committee was charged with the function, after considering the inquiry committee”s report, of exercising disciplinary powers over errant accountants whose actions contravene the Act. Firstly, the Board, by merely adopting the views of the inquiry committee, had committed an error by not exercising its statutory discretion. Secondly, the approach of the inquiry committee was flawed as it had failed to ask whether this instance of improper conduct necessarily brought the profession into disrepute. In Woo J”s words, the Board, in adopting the inquiry committee”s report, ‘did not address its mind to the second requirement’: at [64]. The decision-making process was ultra vires because of the Board”s non-exercise of discretion, and an illegality as the decision it adopted was based on an incorrect understanding of the relevant law that regulated the decision-making power under s 34. The Board had not taken into account a relevant consideration stipulated in the governing statute, committing a clear and relevant legal error which affected the substance of the decision it adopted. For good measure, Woo J considered that the appellant”s conduct had not brought the profession into disrepute: at [65].
1.7 Where a statute regulating the conduct of disciplinary proceedings of a professional body like the Singapore Medical Council provides for an appeal to the High Court with respect to its findings, the High Court in deference to that body”s expertise is statutorily required to accept as final and conclusive its findings on matters related to medical ethics or professional standards of conduct unless this is unsafe, unreasonable or contrary to evidence: Chia Yang Pong v Singapore Medical Council[2004] 3 SLR 151 (‘Chia Yang Pong’) at [7]. The High Court affirmed Lord Hailsham”s observations in Libman Julius v General Medical Council[1972] AC 217 at 221 that findings of disciplinary committees should not be easily contested unless it could be shown that something was ‘clearly wrong’ on one of three grounds: the conduct of the trial itself; the application of legal principles; or a demonstration that the committee”s findings were sufficiently ‘out of tune’ with the evidential basis, thus indicating with reasonable certainty that it had been misled. These are all legal enquiries and do not entail interference with matters falling with the expertise of the disciplinary committee. In Chia Yang Pong itself, the High Court confined itself to finding that the Disciplinary Committee had misconstrued its statutory powers in so far as it had imposed a fine beyond its power, contravening s 45(2)(d) of the Medical Registration Act (Cap 174, 1998 Rev Ed) which provided for a maximum $10,000 fine, in contrast with the $65,000 fine imposed in addition to an order to strike Chia”s name from the Register of Medical Practitioners. Fines were, from a statutory construction of the penalties section of the Act, meant to be ‘an intermediate penalty to address the wide gap between a mere censure and a removal of a medical practitioner”s name from the Register’: at [14]. The improper exercise of statutory power is par excellence within the scope of judicial review on the grounds of illegality for statutory misconstruction, as the orthodox rationale of judicial review is to ensure fidelity to the purpose of an Act.
1.8 Judicial review, an aspect of supervisory jurisdiction, is exercisable only by the High Court, not an inferior district court: Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed), s 18, First Schedule. It is also a remedy of last...
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