Administrative and Constitutional Law

• Published date: 01 December 2010
• 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 2010

Introduction

1.1 In the field of public law, the major developments in 2010 lay in the field of constitutional law where there were significant cases relating to the constitutional interpretation of Part IV liberties of the Constitution of the Republic of Singapore (1999 Rev Ed) (‘Constitution’) and, specifically, the inter-relationship between customary human rights law and domestic law with particular respect to the hierarchy of legal norms and the method of reception of international law into the municipal context in Yong Vui Kong v Public Prosecutor [2010] 3 SLR 489 (‘Yong Vui Kong v PP’). The Court of Appeal addressed the issue of the constitutionality of the mandatory death penalty where ‘original intent’ featured as a major constraint on the invocation of international law to create a new right or to afford an expansive construction to an existing right. In a related case, the issue of the reviewability of clemency powers under Art 22P was considered, with the court taking an explicitly comparativist approach which has become a welcome feature characterising decisions rendered in the past few years, a departure from the cursory treatment of international and comparative-law-based arguments associated with decisions from the last decade of the 20th century. The High Court also clarified in Yong Vui Kong v Attorney- General [2011] 1 SLR 1 (‘Yong Vui Kong v AG’) that the pardoning power under Art 22P of the Constitution is non-justiciable, exempt from the province of judicial power. Other than this, the cases in 2010 pertaining to constitutional law issues focused primarily on Art 14 of the Constitution, which protects the freedom of speech and assembly; these freedoms are subject to legislative restrictions which Parliament considers ‘necessary or expedient’ (Arts 14(2)(a) and 14(2)(b) of the Constitution) to serve eight stipulated grounds, including that of the offence of contempt of court. Notably, the High Court in Attorney- General v Shadrake Alan [2010] SGHC 327 (‘Shadrake Alan’) explicitly departed from the previous test of ‘inherent tendency’ in cases relating to the common law offence of scandalising the court, in affirming the apparently stricter test of ‘real risk’. Quentin Loh J opined that these tests did not really differ from each other as both required a contextualised reading of the relevant competing interests, though he nevertheless found reasons to prefer the more stringently framed ‘real

risk’ test. It remains to be seen which test the Court of Appeal will endorse.

1.2 With respect to administrative law, the most notable feature was the flexibility the courts have adopted towards the issue of remedies. In Singapore, prerogative remedies, ie, certiorari, mandamus and prohibition, may be applied for under O 53 of the Rules of Court, whereas remedies like declarations and injunctions must be sought through originating summons. In other jurisdictions, all these remedies may be sought for under a common procedure, eg, the ‘application for judicial review’ in the English context. It may be time for local reform in relation to this though the flexibility of the courts in not being bogged down by technicalities or an excessive procedural formalism goes some way to ameliorate this. In contrast, previous decisions indicate that proceeding by writ rather than under O 53 constitute a ‘hazardous path’, that is, public law remedies are not available under writ proceedings: Seah Hong Say v Housing and Development Board [1992] 3 SLR(R) 497.

ADMINISTRATIVE LAW

The purpose test

1.3 In implementing a statute, the courts apply a ‘purpose’ based test in seeking an interpretation which best effectuates the purpose of the statute. This matter arose in the case of Huang Danmin v Traditional Chinese Medicine Practitioners Board [2010] 3 SLR 1108 (‘Huang Danmin’), with respect to the issue of whether an Act (Traditional Chinese Medicine Practitioners Act (Cap 333A, 2001 Rev Ed) (‘TCM Act’)) regulating the activity of traditional Chinese medicine should be given extraterritorial effect.

1.4 The Traditional Chinese Medicine Practitioners Board (‘the Board’) cancelled the licence of the appellant, a Singapore-registered traditional Chinese medicine practitioner, after considering the findings of an investigation committee composed of mostly experienced TCM practitioners. This included the finding that the appellant performed improper treatment - which had taken place at his Johor clinic - on the relevant patient such that he was guilty of professional misconduct under s 19(1)(i) of the Traditional Chinese Medicine Practitioners Act (Cap 333A, 2001 Rev Ed). The issue was whether the Board could consider the appellant“s treatment, administered outside Singapore at the Johor clinic, for the purposes of determining whether he was guilty of professional misconduct.

1.5 The High Court favoured the view that s 9A(1) of the Interpretation Act (Cap 1, 2002 Rev Ed) required that statutes be read in a purposive manner. The clear purpose of the Act was ‘to ensure the safety and well being of patients by ensuring a minimum standard of professionalism among the TCM practitioners’: Huang Danmin at [23]. An Ethical Code and Ethical Guidelines for TCMP (January 2006) was meant to provide guidance of what the Board considers the minimal standards attending the discharge of the professional duties and responsibilities of TCM practitioners ‘in the practice of TCM in Singapore.’

1.6 A central issue was whether to give extraterritorial effect to the TCM Act, with Tay Yong Kwang J addressing the question of whether a presumption against extraterritoriality in the application of domestic legislation to acts conducted in a foreign state should be applied. He noted that, given the complexity of reality, it was more accurate to eschew a binary analysis in terms of laws with and without extraterritorial effect. Rather, it was ‘probably more accurate to speak of degrees of extraterritoriality than to think of extraterritoriality as a discrete category’: Huang Danmin at [20]. Tay J noted that, in construing a statute purposively, if a court decided a statute ought to be interpreted as having extraterritorial effect in a particular situation, ‘it should also highlight the legally significant factors that form the basis for its decision’: Huang Danmin at [24]. In addition, in so far as the presumption against extraterritoriality ‘is based on a hypothetical legislative concern about the problems that extraterritorial effect may create’, it should follow that lesser concerns should accompany laws with lesser extraterritorial effect.

1.7 The cases surveyed identified two primacy concerns: one based on principle and the other, on practical considerations. First, extraterritorial laws may infringe upon the jurisdictional sovereignty of other states and impair the practice of comity among nations; second, the problem of enforcement: Parno v SC Marine Pte Ltd [1999] 3 SLR(R) 377; R v Secretary of State for Work and Pensions [2002] 3 All ER 994. Notably, where the party in question has ‘substantial links to the domestic jurisdiction’ (Huang Danmin at [27]), in terms of citizenship or property holdings, ‘enforcement is more likely to be more successful’. For example, if the issue pertained to the cancellation of a licence for the carrying out of a regulated activity within the municipal sphere, there is ‘certainty of successful enforcement for obvious reasons’: Huang Danmin at [27]. Aside from these two considerations, whether a statute should be interpreted as having extraterritorial effect ‘depends on the extent to which its purpose would be served by such an interpretation’: Huang Danmin at [31].

1.8 On the facts, to withhold extraterritorial effect of the TCM Act (above, para 1.4) would undermine its underlying purpose as it would open the door to allowing TCM practitioners in Singapore to conduct unsafe and unauthorised treatments on their patients with impunity by providing a ‘ready mechanism’ in the form of simply crossing the Causeway and performing treatments abroad. This was ‘a loophole that cannot be accepted’: Huang Danmin at [33]. Interpreting s 19(1)(i) of the TCM Act to encompass all acts of professional misconduct ‘regardless of where those acts were committed’ was the best way to give effect to the Act and ‘does not result in an overreaching effect’: Huang Danmin at [36]. This is because it was easy to give effect to the TCM Act through cancelling licences to practice in Singapore, while not affecting practice abroad. Considerations of comity were met in so far as foreign jurisdictions remained at liberty to regulate the type of treatments performed within their territory: Huang Danmin at [38]. Drawing an analogy with ‘nationality-based jurisdiction’, the basis for regulating and cancelling licences applied to TCM practitioners conducting themselves as Singapore-registered TCM practitioners.

Courts as appellate bodies defer to the expertise of disciplinary bodies

1.9 The appellant in Huang Danmin argued that the Board had erred in concluding that his treatment did not constitute established TCM practice. The TCM Act also did not provide that failure to adhere to established TCM practices in itself amounted to professional misconduct, and whether this was the case in a concrete dispute turned on general legal principles as well as particular TCM norms.

1.10 Tay J considered that the Ethical Code and Ethical Guidelines for TCMP (January 2006) stated at s 4.1.1(e) that TCM practitioners were not to use unorthodox treatment or treatment tarnishing the reputation of the TCM profession. A failure to use appropriate and generally accepted methods would breach the Ethical Code and possibly amounted to professional negligence or misconduct: Huang Danmin at [45].

1.11 Tay J approved of the approach adopted in Gobinathan Devathasan v Singapore Medical Council [2010] 2 SLR 926 (‘Devathasan’) in relation to the...