Administrative and Constitutional Law

• Author: THIO 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.
• Publication year: 2021
• Citation: (2021) 22 SAL Ann Rev 1
• Date: 01 December 2021

I. Introduction

1.1 In 2021, the major public law cases related to challenges in relation to the scope of judicial power and whether this was interfered with through alternative sentencing regimes, as well as challenges to the Art 12 equal protection clause of the Constitution of the Republic of Singapore1 (“Singapore Constitution” or “the Constitution”). The Court of Appeal in The Online Citizen Pte Ltd v Attorney-General2 considered the constitutionality of the Protection from Online Falsehoods and Manipulation Act 20193 (“POFMA”), which has implications not only in terms of the POFMA regime but, more generally, for the scope and nature of free speech which enjoys Art 14 protection. Exceptionally, the Court of Appeal granted a mandatory order in specific terms, which required the decision-maker not to merely reconsider the exercise of discretion but to also exercise it in a particular manner in CBB v Law Society of Singapore.4

1.2 Some matters were cursorily dealt with, since they “[did] not make any sense”.5 In Kanesan s/o Ramasamy v Public Prosecutor,6 it was argued that because the appellant was a former informant, he would be deprived of his life and liberty under Art 9 as he was not awarded “extra protection”.7 Article 9(1) provides that the appellant, who had been convicted for possessing and consuming drugs, cannot be deprived of his personal liberty “arbitrarily” and must be “afforded due process”, which was not in question here. Further, to argue for special treatment on the basis that the appellant was a former informer would be an “abuse” of the Art 12 equality guarantee. Further, the appellant could not identify any legislative provision showing he was unfairly treated when the Public Prosecutor decided to proceed with prosecuting him for the relevant

drug offences. The High Court also noted in Lee Hsien Loong v Leong Sze Hian8 that POFMA had no bearing on the law of defamation in Singapore: while POFMA imposes criminal liability in public law, the tort of defamation operates in the private sphere; as such, the argument that one should not be able to bypass POFMA to sue in defamation was not accepted.9

1.3 Other points of law were affirmed in various cases. In Tan Hon Leong Eddie v Attorney-General,10 Aedit Abdullah J noted that there was no general duty for the Attorney-General to disclose reasons for making a particular prosecutorial decision in the absence of prima facie evidence that a relevant standard, such as bad faith or unconstitutionality, had been breached, as the Court of Appeal had observed in Muhammad Ridzuan v Attorney-General11 (“Ridzuan”).

1.4 Established tests were applied to the facts of various cases. The definitive test for apparent bias laid down in BOI v BOJ12 (“BOI”) was applied in Soh Rui Yong v Liew Wei Yen Ashley13 (“Soh Rui Yong”) and is to be made out in the context of the entirety of proceedings.14 The guidelines for excessive judicial interference from BOI were also applied in Soh Rui Yong, this being both a “quantitative and qualitative” test15 arising in egregious situations. The court will consider whether the court below has in fact acted in a manner causing actual prejudice to the relevant party, such as preventing that party from presenting its case. Interference may be qualitatively excessive, as gleaned from the focus and effect of the interference, and the tone and demeanour of the judge. It may be quantitatively excessive depending on factors like the frequency and length of intervention. The doctrine against judicial interference seeks to address “two main mischiefs”: that of the judge overstepping his role; and that of a party being prevented from presenting his case.16

ADMINISTRATIVE LAW

II. Exhaustion of alternative remedies

1.5 A procedural issue arising in Re The Online Citizen Pte Ltd17 related to whether The Online Citizen Pte Ltd (“TOCPL”) had exhausted all its alternative remedies, in the form of ss 12(2) and/or 59(1)(b) of the Broadcasting Act18 (“BA”), which had not been utilised.19

1.6 TOPCL, a local media outlet which carried out its activities on websites and social media channels, had its class licence required for providing licensable broadcasting service under s 9 of the BA suspended and cancelled by the Info-communications Media Development Authority (“IMDA”). This stemmed from its failure in 2020 to comply with the requirement to make an annual declaration of its funding sources. These platforms included its main English websites, Chinese website, and Facebook and Twitter accounts. Operating a licensable broadcasting service without a valid licence would constitute a criminal offence under s 46 of the BA.

1.7 TOCPL sought leave for judicial review to apply for four quashing orders and ten declarations in relation to the IMDA's orders against its Chinese website and social media platforms and the IMDA's prohibition against TOCPL providing any new broadcasting services.20 This failed on both procedural and substantive grounds to furnish a prima facie case of reasonable suspicion in favour of granting the remedies sought.

1.8 In relation to the procedural ground, the general principle is that a judicial review applicant must first exhaust all alternative remedies, as the Court of Appeal affirmed in Comptroller of Income Tax v ACC.21 Only exceptionally will this rule be departed from where a statutory remedy avails.22

1.9 Section 12(1) of the BA empowers the IMDA to cancel or suspend a class licence and to require the payment of a fine, while s 12(2) provides that any person aggrieved by the decision of the IMDA may within 14 days of receiving a s 12(1) notice appeal to the Minister, whose

decision shall be final. Valerie Thean J held that what was at stake here was the cancellation of TOCPL's class licence as communicated to TOCPL by the letter from the IMDA — TOCPL would have to appeal against suspension and cancellation of its class licence in order to challenge “the legal effect of this cancellation” — and whether this affected its Chinese website and social media platforms.23 Thus, s 12(2) was an applicable alternative remedy which should have been exhausted.

1.10 Under the more broadly worded ss 59(1)(a) and 59(1)(b) of the BA, a licensee aggrieved by a decision of the authority in the exercise of statutory discretion or anything contained in any code of practice or direction issued by the authority may appeal to the Minister whose decision will be final. Thean J held that s 59 applied, as well as s 12, with its “breadth” serving “to reiterate that all decisions made by the IMDA should first be appealed to and reviewed by the Minister”.24 Whether a finality clause might oust judicial review was not in itself a reason for failing to utilise a statutory appeal procedure, under which the relevant Minister was required to accord an applicant a “fair hearing”, as in relation to s 22(7) of the Planning Act25 in Borissik Svetlana v Urban Redevelopment Authority26 (“Borissik”). As in Borissik, which dealt with planning permission, the regulation of broadcasting services also involved “wider issues of policy in its implementation and administration” and all matters, substantive or procedure, raised in a statutory appeal before the Minister “would be fully and fairly considered” on the “full merits”.27 As this was the leave stage, it was not necessary to consider the scope of judicial review in relation to ss 12(2) and 59(4) of the BA.28

1.11 Thus, by not utilising the statutory appeal procedure under s 12(2) or 59(1)(b) of the BA, and by not “adducing any exceptional circumstances to justify its omission to do so”, the TOCPL had failed to exhaust its alternative remedies before applying for judicial review.29

III. Illegality and irrationality

1.12 The applicant in Tan Hon Leong Eddie v Attorney-General30 was charged with five offences under the Misuse of Drugs Act31 (“MDA”) and sought leave to bring judicial review against the decision of the Director of the Central Narcotics Bureau (“CNB”) (“the Director”) not to subject him to a treatment and rehabilitation order, as permitted by the 2019 amendments to the MDA, and against the Attorney-General, for bringing the five charges.

1.13 The ministerial speech at the second reading of the amendment was referenced; this indicated the intent to distinguish “pure abusers” who only consume drugs and do not face any other offences such as trafficking. For “pure abusers”, the general approach, if they admit to their drug abuse, would be to channel them to the rehabilitation regime.32

1.14 The High Court clarified that the standard of irrationality applied to the person performing the function in question.33 Parliamentary speeches by ministers cannot introduce irrelevant considerations or preclude the consideration of relevant ones by the decision-maker in exercising that function. This is because the second reading speech “serves to open the debate at the second stage by setting out and explaining the clauses in the bill”.34 While such speeches may influence statutory interpretation or give rise to a claim of breach of legitimate expectation, in and of itself, these speeches create “no legal rights or obligations between the State and the individual”.35

1.15 A particular office holder is conferred discretion by statute and, absent specific statutory language, must be permitted to “examine relevant factors”, regardless of what is or is not contained in the second reading speech.36 Relevancy and irrelevancy is “ultimately” defined by the terms of the statute, which can prescribe what may and may not be considered. A parliamentary speech can only “suggest considerations”.37

1.16 In ascertaining relevant considerations to determine whether the ground of illegality could be made, the Tan Cheng Bock v Attorney-General38

approach towards purposive interpretation was to be applied, as mandated by s 9A(1) of the Interpretation Act.39 In this context, a ministerial speech...