Administrative and Constitutional Law
| Date | 01 December 2006 |
| 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. |
| Published date | 01 December 2006 |
1.1 Most of the administrative law cases decided in 2006 related to matters of procedural impropriety. Where substantive grounds of review were invoked, as in the case of arguing that the Chief Assessor of Property Tax had acted irrationally in Aspinden Holdings Ltd v Chief Assessor and Comptroller of Property Tax[2006] 3 SLR 99 (HC), [2006] 4 SLR 521 (CA), these failed. Most notably, the concept of pre-maturity in relation to early stage applications for judicial review was examined at length, as was the test for apparent bias and the rejection of the approach of the House of Lords in R v Gough[1993] AC 646.
1.2 In relation to constitutional law, a number of cases touched upon the scope of constitutionally allocated powers, the nature of constitutional principles like the separation of powers and the rule of law. In terms of fundamental liberties, the cases related to due process rights such as the right to counsel in Art 9(3) of the Constitution of the Republic of Singapore (1999 Rev Ed) (‘Singapore Constitution’) and the limits to free speech which is safeguarded in Art 14 in the form of defamation and contempt of court laws, which are expressly stipulated grounds of derogation in Art 14(2). An argument was also raised that Art 12 provided a right to a pension.
1.3 The nature of supervisory jurisdiction was affirmed in Tee Kok Boon v PP[2006] 4 SLR 398 (‘Tee Kok Boon’). As observed by G P Selvam JC (as he then was) in Haron bin Mundir v Singapore Amateur Athletic Association[1992] 1 SLR 18 at [19], ‘supervisory jurisdiction’ is a ‘term of art’, being the inherent power of superior courts, derived from the common law, to review the decisions of inferior courts and other administrative bodies. It does not extend to co-ordinate bodies. Tay Yong Kwang JC (as he then was) noted in Poh Soon Kiat v Hotel Ramada Nevada trading as Tropicana Resort & Casino
[1999] 4 SLR 391 at [30], ‘No High Court sits in an appellate, revisionary or supervisory jurisdiction over another High Court.’ As Lord Diplock noted in Re Racal Communications Ltd[1981] AC 374 at 384, which Wee Chong Jin CJ approvingly cited in Wong Hong Toy v PP[1994] 2 SLR 396 at [47]—[50], the High Court was ‘not a court of limited jurisdiction’ such that mistakes of law made by High Court judges were not subject to review, but corrected only by means of statutory appeal to an appellate court, where provided. Thus, in Tee Kok Boon, the High Court did not have power to exercise its power of criminal revision over an inferior court decision which had already been upheld on appeal by the High Court
1.4 Judicial review is a discretionary remedy and it is accepted that leave for judicial review should not be lightly granted where the final decision of a tribunal has yet to be made, and its proceedings are pending.
1.5 A court may decline relief because it does not consider an issue ‘ripe’ or because the claimant has moved prematurely. This usually arises in the context of preliminary and interlocutory decisions, and the difficulty is in identifying when an issue has matured into one that is appropriate for judicial review. Exceptions to the concept of prematurity help guide the exercise of supervisory jurisdiction.
1.6 This issue was canvassed in Wong Keng Leong Rayney v Law Society of Singapore[2006] 4 SLR 934 where the applicant, an advocate and solicitor, was subject to proceedings before a disciplinary committee (‘DC’) of the Law Society which found that a prima facie case against the applicant was established, calling the applicant to enter his defence. The applicant instead brought an application for leave to seek judicial review of the DC”s findings and sought, inter alia, for an order to quash the DC”s decision not to exclude certain evidence on the basis that this had been illegally obtained. The DC had not yet ruled that the evidence established ‘sufficient cause of sufficient gravity for disciplinary action’, nor had it indeed decided what weight to assign the evidence.
1.7 In considering the issue, reference was made primarily to English authorities. The policy reasons behind the concept of prematurity were set out by McCullough J in R v Association of Futures Brokers and Dealers Ltd ex parte Mordens Ltd(1991) 3 Admin LR 254 at 263—264, as observed by V K Rajah J (as he then was) at [17]. Granting judicial review during the
course of a hearing by a body amenable to supervisory jurisdiction could disrupt the proceedings in inferior courts and tribunals, cause delays, waste resources and strain the relationships between the applicant and the decision-making body. Rajah J added an additional reason to the effect that if the inferior tribunal determination was unsatisfactory, this would raise the question ‘whether the applicant can still seek redress for the grievance before a superior court. The issue is almost invariably one of timing and not of irretrievable damage to an applicant’: at [17]. Further, policy-related reasons undergirding ripeness concerns may be that an error may be corrected during the decision-making process or may not substantially affect the final decision; furthermore, appeals procedures may be circumvented through challenges to preliminary decisions: at [18].
1.8 Rajah J noted at [14] that prematurity as an English administrative law concept was one of ‘relatively recent origins as the remedy-based approach of the common law has impended its coherent evolution’. A premature application was essentially one made before the completion of the decision-making process of the tribunal of first instance, which encompassed disciplinary hearings. Courts would almost invariably view such challenges as premature and decline judicial review.
1.9 Rajah J endorsed Beatson”s description of prematurity in his chapter entitled ‘Pre-maturity and Ripeness for Review’ in The Golden Metwand and the Crooked Cord, Essays on Public Law in Honour of Sir William Wade QC (Forsyth & Hare eds) (Clarendon Press, 1998) at p 251:
[A]n application is in danger of being premature if it will deprive a relevant administrative body of the opportunity of applying its expertise to the question at hand, whether that question requires fact-finding, the exercise of discretion or even, although this is more controversial, a conclusion of law.
1.10 He accepted that in exceptional circumstances, it would be remiss to deny the applicant the option of judicial review, as where ‘irreparable harm’ could be done to the applicant: at [19]. The English Court of Appeal in R v Chief Constable of Merseyside Police ex p Merrill[1989] 1 WLR 1077 at 1088 had noted that there could be rare cases where ‘the evidence is so substantial that it is sensible to give separate consideration to a preliminary objection’. Rajah J at [20] cited Beatson who suggested that an exception to the prematurity concept could arise where an interlocutory decision had a ‘substantial effect’, for example, where this would preclude a real opportunity to challenge the interlocutory decision at a later stage.
Furthermore, judicial review might be apt where this would bring savings in costs by immediately dealing with the matter rather than exposing the applicant to the entire decision-making process.
1.11 The present case posed no exceptional circumstance which brought it within the exception to the concept of prematurity and the application for judicial review was dismissed. Rajah J examined four arguments in this respect. First, he rejected the argument that by excluding certain evidence, which formed the basis of the Law Society”s case, judicial review was justified. He applied R v Secretary of State for the Environment ex p Royal Borough of Kensington and Chelsea(1987) 19 HLR 161 (‘Chelsea’) as authority for the proposition that judicial review would be granted even though a challenge to a decision was brought at any early phase of the proceedings if this was ‘made on entire areas of evidence affecting the conduct and utility of the inferior proceedings’: at [22]. In Chelsea, a housing inspector was investigating a decision to compulsorily purchase the property of a landlord on the basis of his tenants” complaints that he was intimidating and gravely mistreating them. The inspector excluded evidence put forward by the housing authority in relation to such harassment and intimidation, despite the fact that this formed the basis of its compulsory purchase decision. Taylor J stressed that this was a ‘most unusual case’. To exclude such evidence would render the housing inspector”s inquiry a ‘barren exercise’ and ‘stultify’ the presentation of the applicant”s real case; if the inquiry had to be repeated, witness memories would ‘be stale and faulty.’ While the inspector had discretion under the relevant rules to admit evidence, this discretion had to be ‘exercised in accordance with the law’. The inspector effectively declined jurisdiction by marking out ‘no-go areas, whole issues upon which it would hear no evidence, whatever its cogency or weight’. It was not the exclusion of evidence per se that was objectionable but rather the fact that the exclusion ‘was not a conscientious exercise of discretion’. Furthermore, the court in Chelsea considered that the excluded evidence was ‘relevant to the determination of the core issues’. On the facts, the applicant sought to have excluded evidence that was the result of entrapment. However, the applicant did not precisely identify how the DC had failed to exercise its discretion property in allowing such evidence; in fact, the DC had considered the case law and applicant”s argument with care and correctly concluded that the ‘current jurisprudence on entrapment’ did not allow it discretion to exclude the relevant evidence’: at [25].
1.12 Second, Rajah J rejected the argument that judicial review...
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