Administrative and Constitutional Law

Citation(2020) 21 SAL Ann Rev 1
Publication Date01 December 2020
Date01 December 2020
AuthorTHIO Li-ann BA (Oxford) (Hons), LLM (Harvard Law School), PhD (Cambridge); Barrister (Gray's Inn, UK); Provost's Chair Professor, Faculty of Law, National University of Singapore.
I. Introduction

1.1 2020 will be remembered as the year of disruption, with the outbreak of the COVID-19 pandemic and the imposition of safe distancing measures which have become integral to the new normal. During the Circuit Breaker period (7 April–1 June 2020), the judicial review of COVID-19 measures was made available, with such judicial review applications classified as “Essential and Urgent”.1

1.2 In the field of public law, most of the major developments took place in constitutional law, as the administrative law cases dealt with mostly routine applications of existing principles. In fact, 2020 can be considered a bumper year for cases dealing with contempt of court, freedom of public assembly, the implied right to vote and to free and fair elections, the first two cases heard under the Protection from Online Falsehoods and Manipulation Act2 (“POFMA”) statutory regime which implicates free speech, and significant developments in the field of equality jurisprudence and approaches towards constitutional interpretation, particularly in clarifying what the presumption of constitutionality entailed.

ADMINISTRATIVE LAW
II. Delegation and the Carltona principle

1.3 The appellant in Asia Development Pte Ltd v Attorney-General3 made a request to the Minister for Finance for a deadline extension for completing and selling property under s 74(1) read with s 74 (2B) of

the Stamp Duties Act4 (“SDA”). He had earlier applied for remission of the additional buyer's stamp duty (“ABSD”) on the property which had been granted subject to the completion of the sale by a specific date. The minister has discretionary power to grant the extension and exemption or remission of ABSD under s 74(1) of the SDA, subject to any conditions he might impose.

1.4 This application for a deadline extension was rejected on 22 May 2017 by the Chief Tax Policy Officer (“CTPO”) of the Ministry of Finance, but not explicitly in the name of the minister. A letter dated 23 May 2017 (“23 May Decision”) sent to the appellant's solicitors communicated this rejection under the Inland Revenue Authority of Singapore (“IRAS”) letterhead, signed by a senior tax officer for the Commissioner of Stamp Duties. The appellant sought a quashing order to question the 23 May Decision. It was argued that the minister should have made the decision personally, rather than the CTPO who attested she made the decision to reject the request for a further deadline extension.5

1.5 The Court of Appeal noted that proceedings had been brought on the basis that the 23 May Decision was made by a Ministry of Finance officer; thus, the appellant could not change course and argue that the Commissioner of Stamp Duties made the decision, even if at various times correspondence regarding that decision was sent from the Commissioner and IRAS.6 It considered the decision to have been made by the CTPO under the authority of the minister.

1.6 The Court of Appeal in applying the Carltona principle from Carltona Ltd v Commissioner of Works7 (“Carltona”) agreed with the High Court judge that the powers under ss 74(1) and 74(2B) of the SDA could be exercised by a Ministry of Finance officer on the basis of the minister's authorisation, rather than having to be exercised by the minister personally. This principle, derived from English administrative law, is that the duties imposed on ministers are normally exercised under the authority of a minister by responsible officials of the relevant ministry. Such decisions made by the official are constitutionally “the decision of the minister”.8

1.7 The Court of Appeal considered the Carltona principle as “a sensible and pragmatic one” which made “the business of government

practicable”.9 It extracted two propositions from Lord Greene MR's statement in Carltona: first, that ministers in general could not expected to exercise each of their functions in person; and second, ministers are responsible for the decisions of his or her officials acting under his or her authority and in turn are answerable to Parliament. It falls to ministers to ensure that the duties and functions in question are carried out by “duly experienced and qualified officers”.10 Whether the Carltona principle applies would “depend on a contextual inquiry that considers the nature, scope and purpose of the function vested in the Minister, and the relevant language of the statute and of the specific provision in question”.11

1.8 On the facts, there was nothing in the terms of ss 74(1) and 74(2B) of the SDA to require the personal exercise of the powers by the minister.12 The powers were “unexceptional” and “likely to involve a substantial volume”. The Court of Appeal noted that between 2016 to 2018, some 1,700 applications pertaining to stamp duties were made, which would require the minister to deal with two every day, if he was required to personally process these applications.13 It noted too that s 35 of the Interpretation Act14 supported the view that the minister did not have to exercise his power in person, but that this could be done by a duly authorised public officer. Thus, the CTPO was a duly qualified officer acting under the minister and there was “nothing improper” about her discharging her duties in considering whether to grant a deadline extension to the appellant for purposes of ABSD remission under the SDA.15

1.9 Nonetheless, as a matter of best practices, the Court of Appeal recommended that “a certain measure of formality” in communicating decisions would be useful to prevent confusion, such that for future decisions, the minister and the IRAS should “carefully explicate which party made the decision in question and the statutory powers engaged”.16

III. Excessive judicial interference

1.10 Although on the facts no excessive judicial interference was found, the Court of Appeal in Muhammad Nabill bin Mohd Faud v Public Prosecutor17

provided six non-exhaustive guidelines in relation to the issue of excessive judicial interference in the specific context of criminal proceedings, where especial prudence, caution and restraint were warranted, compared to civil proceedings, given the severe consequences such interference might exert on an accused person's life and liberty.18 For example, the judge should not ask leading questions which may help a party with the cross-examination of a witness, nor should the judge fill any gaps in the Prosecution's case, as the Prosecution bears the burden of proving its case against the accused person beyond a reasonable doubt.19

1.11 Excessive judicial interference is distinct from the question of apparent bias, which focuses on impressions a fair-minded observer might be left with; it addresses whether, in descending into the arena, the court acted in a way which impaired its ability to evaluate and weigh the case presented by both sides, resulting in actual prejudice.20

A. Leave, standing, remedies

1.12 In appropriate cases, an application for leave in judicial review proceedings may be disposed of on its merits even at the leave stage; in these “rolled-up” applications, the leave and substantive questions are dealt with at the same time, which saves time and cost.21 This has been justified on the basis that splitting the leave stage from the substantive arguments rarely confers any benefit and becomes artificial, particularly where all relevant parties and information are before the court and the parties are prepared to make full arguments: if leave was granted, it was difficult to see “what newer materials or arguments could have been presented at the subsequent merits stage”.22 Conversely, in Syed Suhail bin Syed Zin v Attorney-General23 (“Syed Suhail”), where a prima facie case of reasonable suspicion had been made, this merited further examination at judicial review proceedings where further materials could be adduced and arguments fully made.24

1.13 In applying for leave to commence judicial review proceedings, it is established that three conditions must be satisfied: (a) the subject-matter of the complaint must be susceptible to judicial review; (b) the applicant must have a sufficient interest in the matter to have standing; and (c) the materials before the court disclose an arguable or prima facie case of reasonable suspicion in favour of granting the remedies which the applicant seeks. For example, a person who makes a bare assertion that he was treated differently from other accused persons similarly situated would not satisfy the prima facie case of reasonable suspicion that such alleged differentiated treatment had being carried out “deliberately and arbitrarily against him in particular”; this followed the test for applying the Art 12 equality clause to executive actions, as set forth in Muhammad Ridzuan bin Mohd Ali v Attorney-General25 (“Ridzuan”).

1.14 As there is a presumption that constitutional office-holders and other administrative officials make decisions in accordance with the law, a party who is challenging an executive decision will only be given leave if he can adduce prima facie evidence that the relevant standard has been breached.

1.15 Many administrative law cases in 2020 involved the straightforward application of these conditions in deciding whether to grant leave for judicial review. For example, the issue of standing was not made out in Ravi s/o Madasamy v Attorney-General,26 where the Singapore Police Force seized the electronic devices of Ravi, an advocate and solicitor, for investigations into offences which the advocate and solicitor had allegedly committed. Ravi sought a prohibiting order to prohibit the Attorney-General (“AG”) and Police from reviewing the contents of the electronic device, until the court determined the extent of the alleged professional privilege that might apply. Ravi was found to lack standing, as he suffered no violation of a personal right as legal professional privilege belongs to the client rather than his solicitor.27 The High...

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