Administrative and Constitutional Law

Citation(2016) 17 SAL Ann Rev 1
Published date01 December 2016
Publication year2016
Date01 December 2016

1.1 In terms of administrative law, the decided cases showed some insight into the role of courts in relation to: handing over town council management to another political party after a general election, the susceptibility of professional bodies which are vested with statutory powers like the Law Society review committee to judicial review; as well as important observations on substantive legitimate expectations and developments in exceptions to the rule against bias on the basis of necessity, and how this may apply to private as opposed to statutory bodies. Many of the other cases affirmed existing principles of administrative legality and the need for an evidential basis to sustain an argument. For example, a bare allegation of bias without evidence cannot be sustained; allegations of bias cannot arise when a litigant is simply made to follow well-established court procedures.1

1.2 Most constitutional law cases revolved around Art 9 issues. Judicial observations on the nature or scope of specific constitutional powers were made in cases not dealing directly with constitutional arguments. See Kee Oon JC in Karthigeyan M Kailasam v Public Prosecutor2 noted the operation of a presumption of legality and good faith in relation to acts of public officials; the Prosecution, in particular, is presumed “to act in the public interest at all times”, in relation to all prosecuted cases from the first instance to appellate level. The Prosecution can change its sentencing position after giving effect to the public interest by giving “careful consideration to each case as far as possible”, so as to assist the courts “fully and fairly in the decision-making process” with a view to arriving at “the correct outcome”.3 It was noted that it falls within the constitutional prerogative of the Public Prosecutor (“PP”) to decide whether and what charge to frame against an offender; if the decision is taken not to frame an offender for each

antecedent act, the Prosecution should not expect to be entitled to ask the courts to take these acts into account to enhance the sentence.4

1.3 Constitutional arguments which were weak on their merits received cursory treatment. In Kho Jabing v Public Prosecutor5 (“Kho Jabing (April 2016)”), the Court of Appeal noted that Art 11, which constitutionalises the rule against double jeopardy, was not engaged, as an appeal made by the Prosecution against a sentence imposed by a re-sentencing judge at the first instance is not a second trial; the rule against double jeopardy “is that a person cannot be made to face more than one trial for the same offence”.6 Further, Art 11(1) does not prohibit the retrospective lowering of a sentence.7

1.4 The High Court in Mohamed Shariff Valibhoy v Arif Valibhoy8 noted that the Parliament in enacting the Administration of Muslim Law Act9 intended that the Islamic Religious Council be charged with the administration of Muslim law and the regulation of Muslim religious affairs, for the purposes of “protecting and safeguarding the Islamic religion in Singapore” consonant with Art 152(2) of the Constitution of the Republic of Singapore.10 This reflects a commitment to legal pluralism.

Scope of judicial review

1.5 The Parliament, through statute, has delegated disciplinary powers to professional bodies, which serves the public interest, such as the Law Society established under the Legal Profession Act11 (“LPA”). In general, a body whose source of power is statutory and whose power has a public element to it is subject to judicial review, though this is not an absolute principle.

1.6 The question that arose in Deepak Sharma v Law Society of Singapore12 was whether the decision of the review committee (“RC”)

was susceptible to judicial review. The instance of alleged professional misconduct related to gross overcharging in relation to the costs two solicitors from WongPartnership LLP (“WP”) sought to recover.

1.7 Deepak Sharma (“Mr Sharma”)'s wife, Dr Susan Lim (“Dr Lim”) was liable to pay costs to the Singapore Medical Council (“SMC”) in relation to earlier disciplinary proceedings SMC brought against Dr Lim. SMC's solicitors from WP sent a bill of costs which prompted Mr Sharma to send a letter of complaint on 23 January 2014 to the Law Society against WP solicitors, Mr Alvin Yeo SC (“Mr Yeo SC”) and Ms Melanie Ho (“Ms Ho”). It alleged gross overcharging, an action which amounted to grossly improper conduct and/or conduct unbecoming of members of an honourable profession. The leave application was consolidated with the substantive merits.

1.8 Mr Sharma was not a client or party to the proceedings against Dr Lim but a co-funder of her legal expenses. Woo Bih Li J found that although Mr Sharma was not a party but a stranger to the proceedings, the history and framework of the LPA indicates that “any person” can make a complaint to the Law Society.13 This is consonant with the rationale underlying why solicitors are disciplined for professional misconduct, which is to maintain “the high standards and good reputation of the legal profession”.14 As such, it “should not matter who brings the complaint to the Law Society”.15 Where the conduct complained of is egregious and where the complaint is backed by evidence, there is a “public interest”16 in having this conduct investigated and the solicitor disciplined regardless of who makes the complaint. Sufficient safeguards exist to prevent solicitors and the Law Society from being flooded with complaints, such as the need for complainants to provide statutory declarations and deposits.17 To pitch standing requirements only to include parties to a proceeding will be “too restrictive”.18 Whether or not a complaint should be made should not turn on a locus standi requirement, but “whether there is substance in the complaint”.19 Thus, Mr Sharma did not have to establish standing before making a complaint under s 85(1) of the LPA to the Law Society.20 Further, since Mr Sharma was found to have a “private right” that the RC review his complaint legally, rationally, and with procedural

propriety, he would also have standing to seek judicial review against a dismissal of his complaint.21

1.9 An RC was constituted under s 85(6) of the LPA to review the complaint. One of the arguments raised by the Law Society22 was that given the disciplinary framework envisioned within the LPA, there were “compelling reasons” which rendered the RC's findings unamenable to judicial review, citing Manjit Singh s/o Kirpal Singh v Attorney-General23 (“Manjit Singh”). The Court of Appeal in Manjit Singh had considered instances where statutory power may not be subject to judicial review, singling out factors such as the absence of a public element in relation to a statutory power or duty which may also be governed by private law remedies. Here, the Law Society accepted that the RC's power is statutory and has a public element, and the “compelling reason” it invoked was based on the argument that the Parliament has intended through the LPA's legislative framework “to oust the jurisdiction of the court vis-à-vis decisions by a review committee”.24

1.10 Woo J noted that as an aspect of the rule of law, any statutory clause purporting to oust the court's jurisdiction to review the decisions of an inferior tribunal or public body exercising public functions will be strictly construed.25 Where the Parliament is silent, it has to be “abundantly clear” that it is in fact its intention to oust the jurisdiction of the court.26 Section 106 of the LPA is not found to contain such clear and explicit words as to preclude judicial review unless bad faith is shown.27

1.11 The LPA framework provides for various stages in a “clear escalation process”28 that a complaint made to the chairman of the Law Society goes through, reflecting an “elaborate stepped process”.29 The chairman constitutes an RC to review the complaint. If the RC finds the complaint frivolous or lacking in substance, it will direct SMC to dismiss the complaint with reasons. If SMC dismisses the complaint and gives effect to the RC's decision, it is to provide the complainant with reasons for its dismissal. The LPA provides no further recourse thereafter.30 For other cases, the complaint is referred back to the chairman who will then constitute an inquiry committee (“IC”) to inquire into the

complaint and to report its recommendations to SMC. If SMC decides that a formal investigation is unnecessary, the complainant may apply to a High Court judge to review the matter. The judge may either affirm SMC's determination or direct the Law Society to apply to the Chief Justice to appoint a disciplinary tribunal (“DT”). If SMC decides a formal investigation is necessary, it will apply to the Chief Justice to appoint a DT. Judicial review is provided for the various decisions the DT can make: if the DT determines that there is no cause of sufficient gravity for the disciplinary actions, the complainant, solicitor, or SMC may apply to a High Court judge to review the order. If the DT determines that there is cause of sufficient gravity for disciplinary actions, the Law Society will then apply for the matter to be heard by a court of three judges, whose decision is final and non-appealable.31

1.12 Thus, as Woo J observed, the LPA not only provided for how the complaint was to be dealt with at each stage of the process, but for “various recourses available to dissatisfied parties at some of these stages”.32 Despite this elaborate framework, it does not necessarily mean that the Parliament intends that the disciplinary process be “self-contained to the effect that any recourse outside of the LPA is excluded”.33 Despite the silence of the LPA, there is case law showing that judicial review is available for various stages of the disciplinary process, such as the decision of the IC.34 Thus, the inclusion of the RC into the “stepped disciplinary process does...

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