Administrative and Constitutional Law

• Date: 01 December 2018
• Publication year: 2018
• Published date: 01 December 2018
• Citation: (2018) 19 SAL Ann Rev 1
• 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.

Introduction

1.1 The major public law cases in 2018 related to constitutional law developments in public law, although the High Court in Nagaenthran a/l K Dharmalingam v Attorney-General1 (“Nagaenthran”) discussed the question of the constitutionality or legality of ouster or limitation clauses, and whether, in the case of a limitation clause, such as s 33B(4) of the Misuse of Drugs Act2 (“MDA”), judicial review extended to grounds of review not statutorily enumerated. The question of whether the Public Prosecutor's power under s 33B impinged on judicial power was also considered in Abdul Kahar bin Othman v Public Prosecutor3 (“Abdul Kahar”).

1.2 The case of Attorney-General v Wham Kwok Han Jolovan4 (“Wham”) was the first case for scandalising the court brought under s 3(1)(a) of the Administration of Justice (Protection) Act 20165 (“AJPA”) under which the common law test of “real risk” was replaced by the statutory test of “risk” that a contemptuous statement would undermine public confidence in the administration of justice.

1.3 In relation to constitutional law, there was some discussion about the role of the Attorney-General as the guardian of public interest in ARW v Comptroller of Income Tax.6 The Personal Data Protection Commission noted in passing in My Digital Lock Pte Ltd7 that, following Lim Meng Suang v Attorney-General8 (“Lim”), there was no constitutional right to privacy; neither was it likely that Singapore courts would follow the approach of the Indian Supreme Court in Justice KS Puttaswamy (Retd) v Union of India,9

which recognised the right to privacy as a constitutional right. The Singapore Court of Appeal had instead left it open for a right to privacy to be developed by way of “the private law on privacy”.10

1.4 In relation to administrative law, the cases affirmed existing tests, such as the requirement that a prima facie case of reasonable suspicion that a ground of review had been violated must have been made for leave to be granted for a judicial review application, as in Re Nalpon, Zero Geraldo Mario,11 this being a “modest threshold”.12

ADMINISTRATIVE LAW

Natural justice and s 33B(4) of Misuse of Drugs Act13

1.5 One of the issues raised in Abdul Kahar was a challenge against s 33B(4) as being unconstitutional for violating natural justice rules, on the basis that s 33B(4) ousted judicial review. The Court of Appeal took note that the High Court in Nagaenthran had stated that, in principle, s 33B(4) could be circumvented “where the PP's decision is tainted by a jurisdictional error of law”. Nagaenthran is now pending appeal to the Court of Appeal.

1.6 However, Tay Yong Kwang JA said it was unnecessary to decide this point as an alleged breach of natural justice argued in an application to reopen concluded criminal appeals was relevant “only if it is shown that it could have led to a different outcome”.14 The applicant here had failed to show (a) what it was he would have put to the Public Prosecutor; (b) how he was not allowed to do so; and (c) how, if it had been done, this “might reasonably have led to a different outcome in terms of what the PP decided”.15

Bad faith

1.7 The High Court in Adili Chibuike Ejike v Attorney-General16 (“Adili”) affirmed that it fell to an applicant for judicial review to

demonstrate “sufficient interest” in the matter and to disclose a prima facie case of reasonable suspicion of bad faith on the part of the Public Prosecutor under s 33B(4) of the MDA in favour of granting the remedies sought by the applicant. Section 33B(4) provides:

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.

On the award of a certificate, a death sentence would be modified to life imprisonment.

1.8 On the facts of the case, an argument that the Public Prosecutor acted in bad faith was not successfully established. See Kee Oon J clarified that this evidential burden could be discharged by “highlighting” circumstances of a prima facie case of bad faith, rather than producing evidence directly impugning the propriety of the Public Prosecutor's decision-making process, such as records of meetings showing that the decision was made by malice or unconstitutional considerations.17 When a prima facie case is shown, then the Public Prosecutor is required to disclose his reasons for not issuing a substantive assistance certificate. Within the context of s 33B(4) of the MDA, bad faith refers to “the knowing use of discretionary power for extraneous purposes”.18

1.9 Following the approach in Muhammad Ridzuan bin Mohd Ali v Attorney-General19 (“Ridzuan”), See J stated that it was clear from the terms of s 33(4) of the MDA that the good faith co-operation of an applicant with the Central Narcotics Board (“CNB”) in furnishing information was not a necessary or sufficient basis to grant a certificate of substantive assistance. The purpose of this provision was to enhance the CNB's operational effectiveness, which is a results-based test. Even if an applicant had in good faith provided all the knowledge he had in an accurate and true fashion, if it did not enhance the CNB's operational effectiveness in disrupting drug-trafficking activities, this alone did not suffice to warrant the certification.20 See J also noted that the argument that the CNB had not properly followed up on information provided as an indicator of bad faith could not stand as this would be practically asking the court to adjudicate on the adequacy of CNB investigations,

which would involve the court in a jurisdictional error, citing Tay Yong Kwang J in Cheong Chun Yin v Attorney-General21 (“Cheong Chun Yin”). The CNB had the discretion to evaluate information and decide whether to pursue this as it was best placed to do so, given “its understanding of and access to intelligence gathering”.22 See J noted it would be “wrong for the courts to pass judgment on the adequacy of the investigations conducted by and the operational decisions made by the CNB”,23 noting that on the facts, the CNB had objectively made a “serious and genuine endeavour” to investigate the information provided.

1.10 As to the argument that a piece of information could be proven to be useful in the future, the court accepted it would be untenable to suggest that the certification decision should be indefinitely held in abeyance “until the information somehow proves to be of some use at some imponderable future point in time”.24 On the facts, over a year had passed since the CNB followed up on the applicant's information and as yet, no intelligence had been received and there was no indication if the Nigerian authorities would respond. Thus, the CNB was “entitled to decide how likely it [was] that the information [would] bear fruit”. Chances that information would bear fruit after a long while were in any event “speculative and highly unlikely”.25

Scope and legality of ouster clause

1.11 The decision of the Public Prosecutor not to issue a certificate of substantive assistance under s 33B(2)(b) of the Misuse of Drugs Act was challenged in Nagaenthran. This allows the court not to impose an otherwise compulsory death penalty sentence for a drug trafficking offence.

1.12 Section 33B(4) provides that it falls within the “sole discretion” of the Public Prosecutor to make this decision and no action shall be brought against the Public Prosecutor “unless it is proved to the court that the determination was done in bad faith or with malice”. It is accepted too that one may challenge the Public Prosecutor's determination on grounds of unconstitutionality, as held in Ridzuan.26

1.13 The novel question raised in Nagaenthran involved the proper construction of s 33B(4); it concerned whether judicial review of a

decision not to issue a s 33B(2)(b) certificate was available on grounds other than bad faith, malice and unconstitutionality, contrary to a “plain reading” of s 33B(4).27 The basis for challenge was on grounds of relevancy, irrationality and the absence of a precedent fact.28

1.14 Section 33(B)(4) was challenged on two primary grounds. First, it was argued to be unconstitutional for contravening the judicial power vesting clause in Art 93 and the recognised constitutional principles of separation of powers, which formed part of the “basic structure” of the constitution, and the rule of law. Second, as the Public Prosecutor's decision was a nullity or non-determination, the s 33B(4) ouster clause was “irrelevant”, in the sense that a legal provision cannot apply to a nullity. As such, a declaration that the determination not to issue the certificate was void should be issued.

1.15 Chan Seng Onn J dismissed the application for leave for judicial review, on the basis that the applicant failed to show a prima facie case of reasonable suspicion that the Public Prosecutor's non-certification determination could be quashed on grounds listed under s 33B(2)(b) or beyond. While holding that s 33B(4) of the MDA was a “constitutionally valid” ouster clause, he stated that, “in principle”, it did not exclude judicial review on the basis of “other jurisdictional errors of law” which would render the ouster clause inapplicable.29

1.16 Although the applicant abandoned his arguments based on the grounds of judicial review permitted under s 33B(4), Chan J offered his views, obiter, why these were not made out at the leave stage.

Bad faith

1.17 In relation to “bad faith”, Chan J affirmed the Court of Appeal's decision in Ridzuan30 which described bad faith within the meaning of s 33B(4) as “a knowing use of a discretionary power for extraneous purpose”.31 It was clear from an...