SHAPING A COMMON LAW DUTY TO GIVE REASONS IN SINGAPORE

• Author: Makoto HONG Cheng LLB (Summa Cum Laude) (Singapore Management University).
• Published date: 01 December 2016
• Date: 01 December 2016

Of Fairness, Regulatory Paradoxes and Proportionate Remedies

Although there are strong justifications for public authorities to give reasons for administrative decisions, the common law duty to give reasons has not found favour in most Commonwealth jurisdictions. This article examines why this is so, and argues that the position ought to be different in Singapore where the statutory duty to give reasons is relatively undeveloped. Moreover, implementing a common law duty to give reasons would be consistent with two key features of administrative law in Singapore — the green light conception and judicial deference. This article then suggests a three-stage framework that administrative decision-makers can consult to determine whether and to what extent reasons are required in each case. It also proposes legal and remedial measures that can achieve the purpose of the duty while taking into account Singapore's unique institutional conventions and the courts' prevailing attitude towards judicial review.

I. Introduction

1 To the layperson, the giving of reasons for an administrative decision would seem not only desirable but also necessary for accountability, openness, principled decision-making and the requirements of legality. However, there remains no general duty to give reasons for administrative decisions in most common law jurisdictions (“the common law rule”). In Singapore, the Court of Appeal recently affirmed the common law rule in Manjit Singh s/o Kirpal Singh v Attorney-General1 (“Manjit Singh I”) and a subsequent decision involving

the same parties2 after a brief survey of existing Commonwealth authorities. Significantly, however, the court did not foreclose the possibility of re-examining the common law rule in future.

2 This article argues that introducing a general reason-giving duty in Singapore is justifiable in principle and policy, and also workable in practice. It examines four central issues:

(a) whether the advantages of recognising a reason-giving duty outweighs the disadvantages;

(b) whether departing from the common law rule would be justified in light of divided case law in Singapore and other Commonwealth jurisdictions with an established body of case law on the issue;

(c) whether introducing a reason-giving duty would be consistent with key features of administrative law recognised in Singapore; and

(d) how the duty should operate in practice if recognised.

3 Part II3 considers the first issue by identifying the normative bases for requiring reasons and explaining how these have already found expression in the judicial duty to give reasons in Singapore. It argues that the underlying rationale of the judicial duty is equally applicable to many administrative decisions, and that the different functions between judicial and administrative decision-makers cannot ipso facto justify the vastly different standards for giving reasons. Key arguments for preserving the common law rule are then identified and weighed against arguments for departing from the rule.

4 Parts III4 and IV5 address the second issue. Part III considers the law in Singapore and concludes that the court is open to departure from the common law rule. Part IV surveys the law in the UK, Australia, Canada and Ireland to identify why courts have required reasons in particular circumstances and to draw common themes from among these jurisdictions. It also highlights differences between the statutory regimes in the jurisdictions surveyed and Singapore to argue that the slow pace of developments in these jurisdictions should not prevent Singapore courts from developing an autochthonous reason-giving duty.

5 Part V6 examines the third issue by first explaining how a reason-giving duty would be consistent with the green-light conception of administrative law recognised in Singapore. It argues that instead of subjecting administrative decision-makers to greater judicial scrutiny, the duty could paradoxically achieve the opposite effect by enhancing the legitimacy of administrative decision-makers. The part then considers how the duty would justify the doctrine of judicial deference, which features prominently in Singapore. By linking the duty with unique features in Singapore administrative law, the part seeks to supplement existing literature, which has hitherto focused on the relationship between the duty and discrete components of administrative law like procedural fairness and irrationality.

6 Part VI7 engages the fourth issue in three sections. The first discusses whether a categorisation approach, under which different categories of administrative decisions and their corresponding standards of reasons are identified at the outset, should be preferred to a context-sensitive approach. The second proposes a three-stage framework to determine whether and to what extent the duty should apply in each case. The third examines the legal and remedial consequences that should result from a breach of the duty. It suggests that Singapore courts should adopt proportionate remedies that can achieve the purpose of the duty while leaving intact an impugned decision instead of quashing the decision by default.

II. Why the need for reasons?

A. Arguments for the duty

7 The normative bases for requiring reasons may be divided into two categories: instrumental and non-instrumental. In the instrumental category, the first basis is that reasons may reduce the likelihood of unmeritorious challenges to administrative decisions when affected individuals are persuaded that the decision is legitimate. Even if the affected individual were still dissatisfied with the outcome, reasons may render the decision more acceptable and increase the likelihood that the decision will be complied with.8 If published, reasons can also provide guidance to the decision-maker for its future decisions, and to applicants who would be able to gauge their likelihood of success. Second, the giving of reasons is widely regarded as one of the principles

of good administration because it encourages a “careful examination of the relevant issues, the elimination of extraneous considerations, and consistency in decision-making”.9 It also helps to control administrative discretion by focusing the decision-maker's mind on the right questions. Public confidence in the administrative system could be enhanced, and willingness to co-operate with the system improved, by demonstrating that decisions are made carefully and conscientiously.

8 The second category is aimed at promoting the dignitarian aim of administrative law by giving an aggrieved individual a proper chance to know possible grounds on which a decision may be challenged.10 While this may have a beneficial effect on the quality of decisions, thereby contributing to fairness, the emphasis is on “treating a disappointed applicant with the respect which his dignity as a citizen demands”.11

9 These normative bases are by no means purely theoretical. Many Commonwealth jurisdictions, including Singapore, have already recognised them in the context of the judicial duty to give reasons. In Thong Ah Fat v Public Prosecutor12 (“Thong Ah Fat”), which involved a judicial decision, the Singapore Court of Appeal surveyed various English and Australian authorities and academic commentaries that discussed the nature and rationale for such a duty. The court observed how the giving of reasons (a) has a self-educative value; (b) hones the exercise of judicial discretion and encourages judges to give well-founded decisions;13 (c) enables parties, who may ordinarily have legitimate interests in knowing these reasons to know why they have won or lost;14 (d) ensures that the appellate court has the proper material to understand and do justice to the decisions at first instance;15 and (e) helps to curb arbitrariness.16 Granted, the rules that govern the exercise of judicial functions may not necessarily be applicable to administrative functions. Nevertheless, it is suggested that the “illocutionary force” of a legal decision, referred to in Thong Ah Fat to justify the judicial duty to give reasons,17 applies equally to many administrative decisions. Like a legal decision, an administrative

decision may declare the institutional fact of liability or non-liability; assert propositions of fact underlying or constitutive of the alleged guilt or non-guilt/non-liability; and/or ascribe legal character to the facts as found.18 Consider the example of compulsory acquisition, a power available to the Housing and Development Board (“HDB”) under s 56 of the Housing and Development Act19 (“HDB Act”) and recently considered by the High Court in Per Ah Seng Robin v Housing and Development Board.20 In that case, the HDB decided that there were sufficient grounds to establish that the appellants were not residing in the property. It then exercised its power of compulsory acquisition under s 56(1)(h) of the HDB Act. In so doing, the HDB had:

(a) determined that liability under s 56(1)(h) exists;

(b) asserted propositions of fact underlying or constitutive of the said liability, namely that the appellants had sublet their entire flat without the HDB's prior written consent and were not in continuous physical occupation of the flat;21 and

(c) ascribed legal character to the facts by deciding that compulsory acquisition should take place.

10 The above example shows that judicial and administrative decisions may share the same illocutionary force in spite of their different functions. Hence, the current divergence between the judicial duty to give reasons and the common law rule cannot be explained by the difference in functions alone. The difference also fails to explain why administrative decision-makers should be held to a much lower, and indeed non-existent, general standard in giving reasons. These deficiencies could explain Sir John Donaldson MR's opinion in R v Lancashire County Council, ex parte Huddleston22 (“Huddleston”):2...