Administrative and Constitutional Law

• Published date: 01 December 2017
• Author: THIO 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.
• Date: 01 December 2017
• Publication year: 2017
• Citation: (2017) 18 SAL Ann Rev 1

Introduction

1.1 The major developments in public law in 2017 related primarily to constitutional law, while the administrative law cases involved the application of well-established principles or tests.

1.2 The concern to develop constitutional jurisprudence on “autochthonous constitutional grounds, informed by our national considerations” is characteristic of contemporary judicial decisions, as can be seen in Comptroller of Income Tax v ARW.1 The issue there concerned the scope of the Attorney-General's powers and whether the Attorney-General is entitled to intervene in discovery applications to assert public interest privilege. Aedit Abdullah JC (as his Honour then was) said that while reference might be made to English case law in search of analogies, caution should be taken as the assertion of public interest privilege by the English Attorney-General, derived from Crown prerogative, was a concept “not easily transposed into a system with a written constitution”.2 The judicial determination of the boundaries of the various government branches should be based on construing the constitution rather than determining the content of prerogative rights “which arose in a system of government different from our own”.3 Further, while the Attorney-General in England and Wales is a Minister of the Crown, the Singapore Attorney-General is a professional holding a constitutional office, as a member of the executive branch.4 The scope of the Attorney-General's powers is therefore “controlled and circumscribed by the language and framework of the Constitution”5 under Art 35 of the Constitution of the Republic of Singapore.6

1.3 Three significant cases directed themselves to the new reserved elections provision, Art 19B of the Constitution, to be operationalised

under Art 164, which were introduced by constitutional amendment in 2016. In these decisions, the courts provided extensive elaboration of what purposive interpretation entailed in reading the Constitution, as well as an interesting albeit obiter discussion of the basic structure doctrine, as it may apply to Singapore. Some exposition on free speech theory was also discussed in Attorney-General v Ting Choon Meng7 (“Ting Choon Meng”).

ADMINISTRATIVE LAW

Standing

1.4 The Court of Appeal in Deepak Sharma v Law Society of Singapore8 (“Deepak Sharma”) made an observation that the view of the High Court judge on standing was “persuasive” without expressing a conclusive view, as this was unnecessary “in the absence of detailed arguments by the parties”.9 This view was that any person could make a complaint under s 85(1) of the Legal Professions Act10 (“LPA”) based on the wider public interest in maintaining the high standards and good reputation of the legal profession.

Leave

1.5 For leave to be granted under O 53 r 1 of the Rules of Court11 (“RoC”) three requirements must be satisfied: first, the matter must be susceptible to judicial review; second, the plaintiff must have sufficient interest or standing in the matter; and third, the material before the court must disclose an arguable case or a prima facie case of reasonable suspicion in favour of granting the public law remedies sought by the plaintiff.

1.6 The plaintiff, Zero Geraldo Mario, made two complaints to The Law Society of Singapore in Nalpon Zero Geraldo Mario v Law Society of Singapore12 (“Nalpon v Law Society of Singapore”) and Re Nalpon, Zero Geraldo Mario13 (“Re Nalpon”). The Law Society appointed a Review Committee in both cases, and in both cases, the complaints were

dismissed. In both cases, the application failed at the leave stage, in that a prima facie case of reasonable suspicion was not made out.

1.7 In Nalpon v Law Society of Singapore, the then President of the Law Society, Thio Shen Yi, had made a comment, reported in a daily newspaper on a case when a 14-year-old male student who was questioned by the police for molesting a girl killed himself shortly afterwards. In it, he suggested the police should have taken a “less intimidating way” of approaching the investigation. In response, the Law Minister reportedly chided Senior Counsel Thio for practically implying that the student killed himself because of police intimidation, stating that “Mr Thio has a duty to be fair to the police officers”.14 The Law Minister added Mr Thio seemed to make the assertion of intimidation, based on other statements, which are themselves false.

1.8 Among the charges Mr Nalpon brought in his written complaint to the Law Society was that Mr Thio had acted in a manner unbefitting of an advocate and solicitor and as Law Society President in making false statements in the February 2016 Law Gazette on a case under police investigation, contrary to s 67 of the Legal Profession (Professional Conduct) Rules.15 There were complaints too, concerning statements made to the media. The Review Committee issued a report directing the Council of the Law Society (“Council”) to dismiss the complaint;16 the Law Society received the report and sent a copy to Mr Nalpon on 8 November 2016. Mr Nalpon later sought a quashing order against the decision of the Review Committee. Mr Nalpon filed the originating summons out of time, that is, breaching the three months rule in O 53 r 1(6) of the RoC and did not satisfactorily account for the delay.17

1.9 In commenting on the substantive merits of the application, the High Court noted that Mr Nalpon had failed to make a prima facie case of reasonable suspicion in favour of granting the public law remedies sought by the plaintiff. While the evidence suggested that Mr Thio had made a wrong statement, there was no evidence that there was a deliberate intent to make a false statement or that Mr Thio had no reasonable ground to believe the statement was true. On the facts, the Review Committee had not made an error of law, shown bias or irrationality.18

1.10 Mr Nalpon made another complaint to the Law Society against three lawyers who were his opposing counsel in a civil suit for conduct unbecoming in the conduct of that suit in Re Nalpon. The Review Committee dismissed the complaints on the basis that the information provided by the applicant did not provide any support for his complaints.19 The “sensible inference” from the Review Committee's decision letter, which was brief, was that it had “properly considered the complaint” of the applicant and “simply found no basis for his grievance”.20

1.11 The plaintiff argued that the Review Committee had failed to give “due consideration” to his complaint as it was not possible for it to assess all the evidence presented to it “in only seven days (or four working days)”.21 The High Court stated that it was not the Review Committee's role to carry out a “detailed examination” [emphasis in original] of the underlying facts as this fell into the remit of the trial judge who heard witnesses and adduced evidence at trial.22 The Review Committee's decision was not Wednesbury unreasonable just because the applicant disagreed with the decision.23 See Kee Oon J noted that this test did not mean there was “a single inevitable approach or determination” in a given matter, refereeing Chee Siok Chin v Minister for Home Affairs.24 On the facts, there were “reasonable grounds” to support the Review Committee's decision as no finding had yet been made on the key factual contention of whether Innovez had only one project at the material time. The plaintiff had in three of six complaints asserted that the three lawyers sought to mislead the court on this very point.25 The assistant registrar decided to leave this matter to the trial judge and without a conclusive finding on this factual question, there was no basis to conclude the lawyers had attempted to mislead the court.26

Internal remedies rule

1.12 The question whether the Rules of the Singapore Swimming Club (“Club's Rules”), an unincorporated association, must be complied

with before judicial proceedings are commenced arose in Tan Wee Tin v Singapore Swimming Club.27

1.13 The defendant was the Singapore Swimming Club (“SSC”) and the plaintiffs were all members of the SSC Management Committee (“MC”) at the relevant time. In November 2011, the Court of Appeal found the then President, Freddie Koh, of the MC (May 2008–2009) liable for defamation.

1.14 In December 2011, a series of confidential MC meetings took place reaffirming an indemnity resolution passed by the 2008 MC. By January 2012, the indemnity resolution had been reaffirmed thrice, allowing payments to be made towards Mr Koh's legal expenses. On 4 March 2012, the defendant convened an extraordinary general meeting of members, where it was resolved that Mr Koh would be removed as President of the defendant's MC and for the defendant to stop making further payments towards Mr Koh's legal expenses.28 On 12 March 2012, Mr Koh commenced proceedings by originating summons against the defendant, seeking declarations that the indemnity resolution was valid and bound the defendant, and that the resolution of 4 March 2012 was void.29

1.15 A motion of censure and no confidence was sought at the 27 May 2012 Annual General Meeting (“AGM”) by a member of the defendant, in relation to the cheque for $1,021,793.48 made in payment towards Mr Koh's legal expenses. The motion of censure was amended and directed at the first and second plaintiff, and passed at the 2012 AGM. On 18 June 2012, after the new MC was elected, the defendant commenced proceedings to recover the moneys the defendant had paid towards Mr Koh's legal expenses. The Court of Appeal in Singapore Swimming Club v Koh Sin Chong Freddie30 found that the actions of Mr Koh fell outside the scope of the indemnity resolution as he had not acted properly in discharging the duties and responsibilities on behalf of the defendant when he made the defamatory statements.31

1.16 Shortly thereafter, a complaint was lodged against members of the 2011 MC where a Mr Poh Pai Chin alleged...