Administrative and Constitutional Law

AuthorTHIO Li-ann BA (Oxford) (Hons), LLM (Harvard Law School), PhD (Cambridge); Barrister (Gray's Inn, UK); Provost Chair Professor, Faculty of Law, National University of Singapore.
Published date01 December 2019
Date01 December 2019
Citation(2019) 20 SAL Ann Rev 1
Publication year2019
I. Introduction

1.1 The major public law cases in 2019 related to constitutional law developments, as the administrative law cases primarily affirmed established approaches. What was notable was the characterisation of s 33B(4) of the Misuse of Drugs Act1 (“MDA”) not as an ouster clause but as a statutory immunity clause in Nagaenthran a/l K Dharmalingam v Public Prosecutor2 (“Nagaenthran”). The major constitutional issue revolved around the question of whether by-elections must be called when a member of a group representation constituency vacates her seat, and whether there was an implied right to representation which was part of the “basic structure”, discussed in Wong Souk Yee v Attorney-General3 (“Wong”). The applicability of statutory canons of construction to constitutional interpretation was also discussed in Wong and Arts 12 and 14 of the Constitution of the Republic of Singapore4 (“the Constitution”) were fundamental liberties at issue in 2019 cases.

I. Precedent fact review

1.2 The Court of Appeal in Nagaenthran found that the powers of the Public Prosecutor (“PP”) under s 33B(2) of the MDA did not require an objective precedent fact to be established before it could be exercised; judicial review does lie where a precedent fact is required, following Khawaja v Secretary of State for the Home Department5 as cited in Chng Suan Tze v Ministry for Home Affairs.6 Section 33(2)(b) of the MDA reads:

… the Public Prosecutor certifies to any court that, in his determination, the person has substantively assisted the Central Narcotics Bureau in disrupting drug trafficking activities within or outside Singapore[.] [emphasis added]

1.3 The Court of Appeal found that the words “in his determination” demonstrated that Parliament's intent was for the PP to be the decisionmaker, in deciding whether an offender had provided substantive assistance to the CNB in disrupting drug trafficking activities. Section 33B(4) of the MDA provided that the PP's determination under s 33B(2)(b) should be at the PP's sole discretion.7 The PP under s 33B(2)(b) was to make a “determination” which was “not a matter of the exercise of executive of executive discretion”;8 once the determination is made, the PP was bound to issue the certificate. What fell within the PP's discretion was the “sorts of inquiries and information he would need” in coming to his determination under s 33B(2)(b).9

1.4 It stated, obiter, that Parliament's decision to entrust the PP with discretion over such matters and to make such determinations did not violate the Art 93 judicial power clause, given the “lack of manageable judicial standards”10 in assessing whether substantive assistance had been rendered; the s 33B(2)(b) determination did not “constitute something” falling properly within “the exercise of a core judicial function to begin with”.11 It appears that when the subject-matter would attract the application of the principle of non-justiciability or the “political questions” doctrine,12 this is treated as evidence that Parliament did not intend the courts to intrude into such matters, usually because it is something that courts should not address as a matter of institutional competence or propriety. This factor is relevant to the process of ascertaining whether a power is conditioned on a precedent fact, which courts may review, or whether, because a decision involves non-justiciable political issues, courts should refrain from reviewing or should apply a limited form of review.

II. Statutory immunity clauses and ouster clauses

1.5 Under s 33B(2)(b) of the MDA, the Public Prosecutor may issue a certificate of substantive assistance if he, upon inquiry, determines that an offender, who is a courier, has provided substantive assistance

in disrupting drug trafficking activities in general, whether within or without Singapore. Courts then have the discretion to sentence to life imprisonment a person convicted of a drug trafficking offence that would ordinarily attract the imposition of the mandatory death penalty. This was introduced in 2012, while the appellant, Nagaenthran, had been charged on 22 April 2009 and later convicted for importing drugs under s 7 of the MDA. He sought leave to commence judicial review proceedings to challenge the PP's decision not to issue such certificate. In Nagaenthran,13 the issue was whether s 33B(4) of the MDA ousted the jurisdiction of the court to review the legality of the PP's non-certification decision. The subsection reads:

The determination of whether or not any person has substantively assisted the Central Narcotics Bureau in disrupting drug trafficking activities shall be at the sole discretion of the Public Prosecutor and no action or proceeding shall lie against the Public Prosecutor in relation to any such determination unless it is proved to the court that the determination was done in bad faith or with malice.

1.6 One of the issues raised was whether s 33B(4) of the MDA precluded judicial review of the PP's non-certification decision under s 33B(2) on grounds other than bad faith and malice. Following Muhammad Ridzuan bin Mohd Ali v Attorney-General14 (“Mohd Ridzuan v AG”), it was accepted that s 33B(4) did not preclude challenging the PP's determination where this contravened constitutional protection and rights.15

1.7 The Court of Appeal distinguished between an ouster clause, which excluded the jurisdiction of the court to deal with a matter, and clauses that immunised parties from suit.16 An example of a statutory immunity clause would be s 68(2) of the Subordinate Courts Act17 (“SCA”). The court in South East Enterprise (Singapore) Pte Ltd v Hean Nerng Holdings Pte Ltd18 found that this protected a bailiff from excessive seizure claims unless the bailiff had knowingly acted in excess of his authority. Section 68(2) provides that a subordinate court officer charged with the duty of executing any mandatory process of the subordinate court shall not be sued for the execution of said duty unless he knowingly acted in excess of the authority conferred upon him by that process.

1.8 So too, s 14(1) of the Government Proceedings Act19 (“GPA”) provides immunity to a member of the Singapore Armed Forces (“SAF”) from liability in tort for causing death or personal injury to another SAF member, provided certain conditions are fulfilled, and provided the act or omission is connected with the execution of his duties as an SAF member. The reason for this immunity granted to SAF members was to ensure “they would not be burdened by the prospect of legal action when training, and ultimately to safeguard the effectiveness of the SAF's training as well as its operations”,20 as the High Court observed at Estate of Lee Rui Feng Dominique Sarron, deceased v Najib Hanuk bin Muhammad Jalal.21

1.9 Statutory immunity clauses, which may be variously worded, do not oust the jurisdiction of the court but rather, “protect an identified class of persons from suit under certain conditions”.22 Nothing in s 68(2) of the SCA or s 14(1) of the GPA “purports to exclude the jurisdiction of the courts to deal with any class of matters”. The Court of Appeal delved into the policy reasons why Parliament might grant public officials such as prosecutors immunity from suit,23 borrowing from the Kuala Lumpur High Court decision of Rosli bin Dahlan v Tan Sri Abdul Gani bin Patail,24 which cited the Canadian decision of Henry v British Columbia (Attorney General).25 Three policy reasons were identified.

1.10 First, immunity would encourage “public trust in the fairness and impartiality” of those exercising discretion in relation to criminal prosecutions.

1.11 Second, the threat of personal liability for tortious conduct would have a “chilling effect on the prosecutor's exercise of discretion”.

1.12 Third, permitting civil suits against prosecutors would invite “a flood of litigation” which would “deflect a prosecutor's energies” from discharging public duties and may facilitate unmeritorious claims which may threaten prosecutorial independence.26 However, it is also important to ensure private individuals subject to malicious prosecution are not denied a remedy.

1.13 A “balance” is struck by providing a broad but not absolute immunity, such as requiring good faith in the exercise of that public officer's powers.

1.14 Statutory immunity clauses are “exceptional” in precluding claims from being brought against certain classes of persons under prescribed conditions, who would otherwise be subject to some form of liability.27 They commonly seek to “protect persons carrying out public functions” to ensure that the discharge of such functions are not hindered. Further, immunity usually does not apply where a “misuse or abuse” of public functions is involved or where the proper ambit of the functions of a public office is exceeded.28 Thus in Rosli,29 prosecutorial immunity did not protect claims for “malicious, deliberate or injurious wrongdoing”.30

1.15 The Court of Appeal found that s 33B(4) was not an ouster clause as it did not purport to preclude the jurisdiction of the courts to review the legality of the PP's determination under s 33B(2)(b) of the MDA; rather, it sought to “immunise the PP from suit save on the stated grounds”. As such, one aggrieved with the PP's decision not to award a substantive assistance certification could bring judicial proceedings only on ground of bad faith, malice and unconstitutionality. It underscored that the immunities would not extend to instances where a public official abused or exceeded the functions of their office.31

1.16 In addition, the Court of Appeal held that nothing in s 33B(2)(b) excluded the usual grounds of judicial review, illegality, irrationality and procedural impropriety on the basis of which the court could examine the legality but not the merits of the PP's determination.32 It distinguished between the court's sentencing...

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