Administrative Law in Singapore: Recent Developments and Looking Ahead
There has been an increased interest in the field of administrative law in Singapore in recent years.1See, for example, Lynette Chua and Stacia Haynie, “Judicial Review of Executive Power in the Singaporean Context, 1965-2012” (2016) 4 Journal of Law and Courts 41; Swati Jhaveri, “Localising Administrative Law in Singapore: Embracing Inter-Branch Equality” (2017) 29 SAcLJ 828. Two issues of the Singapore Law Gazette this year featured stories with administrative law content: Aurill Kam, “Raising New Issues at Judicial Review: When Might Late be Too Late?” Singapore Law Gazette June 2018; Calvin Liang, “How to Avoid Getting “Clubbed” to Death: A Survival Guide”, Singapore Law Gazette June 2018. This has been triggered by a number of significant developments in the field. This article surveys major developments from this year and also considers future trajectories for the field.
1. Procedural Aspects of Judicial Review
Judicial review is a discretionary remedy. An applicant needs to apply for leave to formally commence judicial review proceedings.3The Supreme Court and Ministry of Law launched a public consultation on reforms to the civil justice system on 26 October 2018. There are a number of proposals relating to Orders 53 and 54 which govern the grant of prerogative orders in public law cases. One of the proposals is to abolish the existing application for leave as a distinct first step. This is said to reflect actual practice where the applicant and respondent will often agree to combine the leave stage with the “merits stage”.: Public Consultation Paper on Civil Justice Reforms: Recommendations of the Civil Justice Review Committee and Civil Justice Commission, 26 October 2018, at para (127) (available at: < https://www.mlaw.gov.sg/content/dam/minlaw/corp/News/Press%20Release/Public%20consultation%20on%20proposed%20reforms%20to%20the%20Civil%20Justice%20System/Annex%20A%20Public%20consultation%20paper%20on%20civil%20justice%20reforms.pdf>, last accessed 12 December 2018). For leave to be granted, the applicant typically needs to satisfy the Court that:
- the subject matter in question is susceptible to judicial review;
- the applicant has standing with a sufficient interest in the matter; and
- the material before the court discloses an arguable or prima facie case of reasonable suspicion in favour of the grant of remedies.2Nagaenthran a/l K Dharmalingam v Attorney-General (2018) SGHC 112 (Nagaenthran).
These discretionary bars to judicial review aim at striking a balance between ensuring adequate access to justice against the risk of unduly constraining the operation of government at the expense of the broader public. This section considers two bars that have raised issues this year. Firstly, the impact of ouster clauses in legislation on access to and the scope of judicial review. Secondly, clarifications on the stringency of the threshold for leave.
(a) Ouster Clauses and the Role of Administrative Law
Privative or ouster clauses are found across the common law world. These clauses exclude or restrict the scope of judicial review of the executive’s acts or decisions under that statute. Ousters may be full or partial. The latter may impose a strict time limit for the commencement of proceedings or restrict the grounds on which decisions may be challenged. The former seek to exclude all judicial review. Irrespective of form, these clauses bring into tension a number of constitutional principles: the need for courts to respect parliamentary intention, the separation of powers (the judiciary and the executive should have their domains respected) and rule of law concerns that require that all public power is held to account and that the aggrieved have a proper remedy for challenging decisions of public bodies. Courts across the common law world have adopted varying approaches to resolve this tension. They may recognise the ouster of judicial review, respecting the intention of the legislature. Alternatively, such clauses may be disregarded on the basis that they are an unconstitutional interference with judicial power or not sufficiently respectful of the rule of law and access to justice. Finally, courts have also sought to (re)interpret ouster clauses in a way that allows for some judicial review on traditional administrative law grounds of review: namely, illegality, irrationality and procedural impropriety. This section looks at the judicial consideration of the latter argument by the courts this year.4This section focuses on the courts’ consideration of arguments in favour of interpreting ouster clauses to permit review on traditional administrative law grounds. The cases in this section also raise constitutional arguments against such clauses. For example, in Prabagaran a/l Srivijayan v Public Prosecutor & Other matters (2017) 1 SLR 173, the applicant argued that section 33B(4) is contrary to the rule of law.
The most litigated privative clause in recent times is the partial ouster of judicial review in section 33B(4) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (MDA). This was introduced in 2013 as part of the broader amendments to the death penalty sentencing regime for certain drugs offences. Section 33B(1)(a) of the MDA provides that a court may sentence a person to life imprisonment instead of the death penalty if, inter alia, the Public Prosecutor certifies that “the person has substantively assisted the Central Narcotics Bureau in disrupting drug trafficking activities within or outside Singapore”.5Section 33B(2)(b) of the MDA. Section 33B(4) then provides that:
“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.”
In Cheong Chun Yin v Attorney-General,6(2014) 3 SLR 1141. the respondent accepted that aside from bad faith and malice, an applicant can challenge the constitutionality of a determination by the Public Prosecutor under section 33B.7This was highlighted by the Minister of Law during parliamentary debates – Second Reading of the Bill, the Minister for Law, Mr K Shanmugam, Singapore Parliamentary Debates, Official Report (14 November 2012) vol 89: “… the Public Prosecutor’s discretion is not unfettered. It is subject to judicial review, either on bad faith or malice, which is expressly provided for, and of course, unconstitutionality, which goes without saying.” This was affirmed in Muhammad Ridzuan bin Mohd Ali v Attorney-General.8(2015) 5 SLR 1222 (Ridzuan). The Court of Appeal in that case held that this reading of the section “flows from the doctrine of constitutional supremacy … all executive acts must be constitutional and the court is conferred the power to declare void any executive act that contravenes the provisions of the Constitution”.9(2015) 5 SLR 1222 at (35).
In 2018, the debate relating to the scope of section 33B(4) was taken one step further: does this section also preclude judicial review on the traditional administrative law grounds of illegality, irrationality and procedural impropriety? In 2014, the applicant in Cheong Chun Yin sought to argue that section 33B(4) allowed judicial review on the grounds that the Public Prosecutor had made an error of law that took him out of his jurisdiction and, in these circumstances, the partial ouster clause embodied in section 33B(4) was not applicable. The clause does not oust the Court’s power to review a decision that has been made outside of the executive’s jurisdiction. This argument has been successful elsewhere. For example, in the UK, in the case of Anisminic v Foreign Compensation Commission a majority of the House of Lords held that a clause purporting to oust the jurisdiction of the courts to review any “determination” was ineffective if the relevant decision was tainted by legal error.10(1969) 2 AC 147 (Anisminic). A “determination” which did not comply with the principles of administrative law was a nullity and beyond the jurisdiction of the decision-maker. Accordingly, it was void and not a “determination” for the purposes of the relevant ouster clause. Justice Tay Yong Kwang rejected the applicant’s argument to this effect in Cheong Chun Yin.11(2014) 3 SLR 1141 at (31).
In 2015 in Ridzuan the Court of Appeal was urged by the applicants to review the Public Prosecutor’s decisions on grounds of procedural impropriety. The Court of Appeal indicated that this may not be possible on a plain reading of section 33B(4); however, ultimately concluded that “it is an open question”.12(2015) 5 SLR 1222 at (76). This echoed views expressed earlier in the judgment on the possibility of review on other administrative law grounds. In particular, the Court of Appeal observed that “where it has been shown that the PP has disregarded relevant considerations and/or failed to take relevant consideration (sic) into account … intuitively it seems inconceivable that the aggrieved person would be left without a remedy and that the decision of the PP should nevertheless stand”.13(2015) 5 SLR 1222 at (72). On both questions (review for procedural impropriety and taking account of relevant / irrelevant considerations) the Court of Appeal declined to express a definitive view in the absence of full argument on the issue by the parties.
The issue was revived in May 2018 in the case of Nagaenthran a/l K Dharmalingam v Attorney-General.14(2018) SGHC 112. Currently on an appeal, with a judgment due to be handed down in May 2019. The applicant in this case challenged the Public Prosecutor’s refusal to issue a certificate of assistance on grounds of review that went beyond bad faith, malice and unconstitutionality. The applicant made several arguments. First, he argued that the Public Prosecutor had failed to take into account relevant considerations. Secondly, the Public Prosecutor had made a determination in the absence of a “precedent fact” (namely in the absence of properly investigated information put forward by the applicant by way of assistance). Finally, the Public Prosecutor had acted irrationally. In addition to the constitutional challenges to section 33B(4), the applicant argued that, even if it is constitutional, that section does not oust the Court’s judicial review of a non-certification decision where the latter is in fact a nullity. The applicant’s argument revived the question of the scope and application of Anisminic-type arguments on ouster clauses in Singapore.15An issue which remains unsettled: Re Application by Yee Yut Ee (1977–1978) SLR(R) 490 at (18) and (31), Stansfield Business International Pte Ltd v Minister for Manpower (1999) 2 SLR(R) 866 at (21)–(22), Re Raffles Town Club Pte Ltd (2008) 2 SLR(R) 1101 at (5) and (8) and Teng Fuh Holdings Pte Ltd v Collector of Land Revenue (2006) 3 SLR(R) 507at (37)–(38); but cf Borissik Svetlana v Urban Redevelopment Authority (2009) 4 SLR(R) 92 at (29)).
The High Court in Nagaenthran concluded that “although s 33B(4) … is a constitutionally valid ouster clause that expressly ousts the jurisdiction of the courts to review the Public Prosecutor’s decision not to issue a certificate of substantive assistance except on the grounds of bad faith, malice or unconstitutionality, the ouster clause in principle does not exclude the review of the Public Prosecutor’s determination on the grounds of other jurisdictional errors of law which render the ouster clause inapplicable”.16(2018) SGHC 112 at (43). The applicant was ultimately, however, not able to satisfy the court that there was a prima facie case with respect to the various pleaded administrative law grounds and leave was refused.17The court rejected the applicant’s arguments about the constitutionality of section 33B(4). The case is now on appeal. The High Court left open a number of questions that will need to be resolved by the Court of Appeal. The appeal was heard in January 2019, with a decision due to be handed down in May 2019.
The Court of Appeal in Nagaenthran will have to resolve a number of connected questions. First, what is the true scope of the Anisminic argument in Singapore. There are a number of sub-issues that will emerge when answering this question. Are ouster clauses ineffective where the relevant decision is a nullity? Which decisions are to be regarded as nullity? Is there a distinction between jurisdictional errors (which render decisions a nullity) and non-jurisdictional errors (which do not)? How will we draw a distinction between jurisdictional and non-jurisdictional errors of law to determine when an ouster clause is applicable? This latter question was left open by the High Court in Nagaenthran because of the absence of argument on the matter by the respondent.18(2018) SGHC 112 at (107)-(108) and (119). The House of Lords in Anisminic came to different conclusions on this precise question (see Nagaenthran at (104)). There were many attempts to resolve this post-Anisminic: R v Lord President of the Privy Council, ex parte Page (1993) AC 682; R(Cart) v Upper Tribunal (Public Law Project and another intervening) (2012) 1 AC 663. It is a live issue at the moment in the UK: R v Investigatory Powers Tribunal, ex parte Privacy International (2018) 1 WLR 2572; appeal to be heard before a seven-judge panel of the Supreme Court in December 2018. The High Court indicated it was minded to view the applicant’s argument relating to the absence of a precedent fact as raising a possible jurisdictional error;19Precedent fact review is the review of errors made in the assessment of evidence presented in support of facts that must objectively exist before a decision-maker has the power to make a decision under relevant legislation. In the case of section 33B, the precedent fact is the information provided by him to the Central Narcotics Bureau which is needed for the Public Prosecutor to make a decision on whether to issue a certificate of substantive assistance in favour of the applicant: (2018) SGHC 112 at (137). but all other grounds pleaded (improper accounting of relevant and/or irrelevant considerations and irrationality) were errors that did not go to jurisdiction.20(2018) SGHC 112 at (108). The court ultimately, however, in reviewing these other grounds, proceeded on the assumption that all errors are jurisdictional errors of law and reviewable.21(2018) SGHC 112 at (116). This will be a key question for the Court of Appeal as Nagaenthran goes on appeal.
Secondly, how do we reconcile the answer to the question of Anisminic with observations in Ridzuan that it would be counter-intuitive to read section 33B(4) as precluding judicial review where the applicant can demonstrate the Public Prosecutor has taken into account irrelevant considerations/failed to account for relevant considerations? Is this a non-jurisdictional error (as indicated by the High Court in Nagaenthran) and therefore, not reviewable by virtue of the ouster clause?
Thirdly, which constitutional principle should determine the answer to these questions: respect for parliamentary intention, separation of powers or the rule of law (which embodies the principle of legality and the need for access to justice)?22Lee Zhe Xu, “When is an Ouster Clause Ousted?” (6 July 2018): http://www.singaporelawblog.sg/blog/article/214 (last accessed on 12 December 2018); plus Nagaenthran at (123). Indeed, the resolution of the administrative law questions relating to ouster clauses will take place against the backdrop of constitutional arguments against ouster clauses. Constitutional arguments against ouster clauses tend to rest on three constitutional principles. Firstly, they are an impermissible restriction on judicial power and thus contravene the separation of powers. Secondly, and related to the first, they shift judicial power away from the judiciary and, therefore, contravene Article 93 of the Constitution which vests this power in the courts. Finally, ouster clauses are contrary to the rule of law, including the principle that “all power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power”.23Chng Suan Tze v Minister for Home Affairs (1988) 2 SLR(R) 525 at (86). A clause which restricts the courts’ discretionary power in this regard is contrary to the rule of law. In responding to these arguments in Nagaenthran, the Court held that, as a general principle, “an ouster clause would be constitutionally valid as long as the determination that the ouster clause seeks to exclude from the province of judicial power is non-justiciable” (emphasis added).24(2018) SGHC 112 at (82). Therefore, presumably, the converse would also hold true: an ouster clause that excludes a justiciable matter from judicial review would arguably not be constitutionally valid.25This was the subject of discussion in Mohammad Faizal bin Sabtu v Public Prosecutor (2012) 4 SLR 947 at (4): does the relevant statutory permission “constitute an impermissible legislative intrusion into the judicial power and accordingly violate the principle of separation of powers”? In Nageanthran the Court observed that in deciding whether the ouster clause was excluding from review a justiciable or non-justiciable determination by the executive, “the judiciary, in recognition of its limited role in judicial review by dint of the constitutional doctrine of the separation of powers, ought to defer to the intention of the legislature in the vesting of certain powers in the executive and respect the relative institutional competence of the executive in respect of decisions that concern issues that judges are ill-equipped to adjudicate”.26(2018) SGHC 112 at (88).
Therefore, with ouster clauses, there are two major unresolved questions: the “justiciability” question in the context of the constitutional arguments against ouster clauses and the Anisminic question in the context of the administrative law arguments.
(b) Leave: A Low or High Threshold?
As a general principle, to obtain leave in judicial review proceedings an applicant must demonstrate a “prima facie case of reasonable suspicion” on “what might on further consideration turn out to be an arguable case”.27Chan Hiang Leng Colin v Minister for Information (1996) 1 SLR(R) 294 at (22). In the recent case of AXY v Comptroller of Income Tax, the Court of Appeal reiterated that this is a low threshold, with the aim being to “filter out groundless or hopeless cases at an early stage, and…prevent a wasteful expenditure of judicial time as well as protect public bodies from harassment (whether intentional or otherwise) when the legality of their decisions is challenged”.28(2018) SGCA 23 at (34). However, the court further recognised that “the courts have not hesitated to strike out unmeritorious judicial review cases even at the leave stage”.29There have been recommendations to raise the threshold for leave: Denise Huiwen Wong and Makoto Hong Cheng, “Raising the Bar: Amending the Threshold for Leave in Judicial Review Proceedings” (2016) 28 SAcLJ 527. Indeed, while a seemingly low threshold, the courts have indicated in other cases that:
- “bare allegations” will not suffice;30ACC v CIT (2010) 1 SLR 281 at (28). and
- the applicant must put forward the “fullest evidence and strongest arguments”.31Teng Fuh Holdings v Collector of Land Revenue (2006) SGHC 93 at (24); Nagaenthran (2018) SGHC 112 at (40); Zheng Jianxing v Attorney-General (2014) 3 SLR 1100 at (35).
Three cases in 2018 exemplify particular difficulties an applicant may face with this low threshold when raising grounds of judicial review that are intrinsically harder to substantiate on the basis of the likely evidence available to applicants at the leave stage. The grounds of review that raise this particular concern are irrationality and bad faith.
In Re Nalpon, Zero Geraldo Mario,32(2018) SGCA 71. the appellant was appealing the High Court’s refusal to grant leave for judicial review of a decision of the Review Committee of the Law Society. The appellant had lodged complaints with the Law Society against three lawyers who he alleged had misled the Court by advancing the falsehoods of their client in the course of a construction dispute (the appellant was counsel for the defendant in that case). The Law Society appointed a Review Committee and, on review, the latter recommended that the Council of the Law Society dismiss the complaints on the basis that they were not properly substantiated. The appellant sought leave to commence judicial review proceedings to quash the decision of the Review Committee. The primary ground of challenge was that the decision was irrational: a decision that was “so outrageous in its defiance of logic or of the accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”.33Re Nalpon, Zero Geraldo Mario (2017) SGHC 301 at (12). Irrationality or unreasonableness defined thus is a high threshold.34(2017) SGHC 301 at (22). This triggered specific issues for the applicant. The appellant argued that the Review Committee made its decision in just seven days, provided only a brief statement of its decision and did not call him or the lawyers that were the subject of his complaint to provide any further information or clarification. Seven days was too short a period of time for a proper consideration of the voluminous materials presented by the appellant. At first instance, the High Court had concluded that these arguments did not pass the high threshold of irrationality review.35(2017) SGHC 301 at (20)-(23). The decision of the High Court demonstrates the difficulties an applicant faces at the leave stage when raising this ground of review. The Review Committee’s decision was set out in a brief letter with no detailing of its reasons for reaching the view that the complaints were lacking in substance. In administrative law, the courts have consistently held there is no general duty at common law to provide reasons.36Manjit Singh s/o Kirpal Singh v Attorney-General (2013) 2 SLR 844 at (85); Manjit Singh s/o Kirpal Singh v Attorney-General (2013) 4 SLR 483 at (10). See Makoto Hong Cheng, “Shaping a Common Law Duty to Give Reasons in Singapore: Of Fairness, Regulatory Paradoxes and Proportionate Remedies” (2016) 28 SAcLJ 24. This can handicap an applicant in substantiating their application for judicial review.37Makoto Hong Cheng, “Shaping a Common Law Duty to Give Reasons in Singapore: Of Fairness, Regulatory Paradoxes and Proportionate Remedies” (2016) 28 SAcLJ 24 at (7). The High Court in Re Nalpon affirmed the common law position on reasons. It rejected arguments that the present case fell within the various exceptional cases where the court would recognise a duty to give reasons.38The two exceptions are where the decision appears to be aberrant or involves a matter of special importance – such as the applicant’s personal liberty: Manjit Singh s/o Kirpal Singh v Attorney-General (2013) 2 SLR 844 at (85); Manjit Singh s/o Kirpal Singh v Attorney-General (2013) 4 SLR 483 at (10). In addition, the Review Committee’s brief statement complied with the statutory requirement to provide reasons set out in section 85(8)(a) of the Legal Profession Act (Cap 161, 2009 Rev Ed).39Section 85(8)(a) of the Legal Profession Act (Cap 161, 2009 Rev Ed) states that: “A Review Committee shall … direct the Council to dismiss the matter if it is unanimously of the opinion that the complaint or information is frivolous, vexations, misconceived or lacking in substance and give reasons for the dismissal …” (emphasis added). The Review Committee had provided its reasons when it stated that the information and documents provided did not support the complaints: from this it is apparent that no further breakdown or elaboration of this was needed. And the “natural inference [from the Review Committee’s statement] … was that it had reviewed the documents submitted … and reasoned that they provided no support for his complaints … [w]hile the Review Committee’s reason for dismissing the complaint was admittedly very brief, an assertion that more extensive or better reasons should have been given is not a recognised ground of review”.40(2017) SGHC 301 at (29). In drawing this inference, the High Court explained that in determining an application for leave, it is not the Court’s role to “conduct an in-depth examination of the documents to resolve conflicting factual evidence, much less make a ruling … before the [underlying] matter proceeded to trial”.41(2017) SGHC 301 at (23) and (26). It, therefore, would not go through an applicant’s supporting documents in detail at the leave stage. It further confirmed that the fact that the Review Committee had not made further inquiries was not sufficient grounds for arguing they had acted irrationally. The Act provides a review committee with a discretion on how to assess a complaint.42(2017) SGHC 301 at (30).
An applicant thus faces multiple hurdles when raising irrationality as a ground of review: the issues with the high threshold of irrationality are compounded by the absence of a general common law duty to give reasons and the Court’s approach to how far it goes in its review of evidence at the leave stage. When the case reached the Court of Appeal, there had been changes in the underlying lawsuit that was the subject of the applicant’s complaint. The suit had been settled out of court and, there was, therefore, no prospect of formal findings of fact by a court that the applicant could use to substantiate his complaint (and which could then also be used to assess whether the Review Committee had indeed reached an irrational conclusion on that complaint). The Court of Appeal, against this backdrop, engaged more than the High Court did with the appellant’s complaint, evidence and what was presented to the Court in the main suit that was the subject of the complaint.43(2018) SGCA 71 at (23), (30)-(38). Eventually it still concluded that the appellant had not provided the right kind of evidence to the Review Committee to support his complaint: the evidence related largely to wrongdoing by the clients and not evidence that the lawyers that were the subject of the complaint were aware of and complicit in their client’s wrongdoing.44(2018) SGCA 71 at (30). Further, despite the low threshold for the grant of leave, the appellant’s complaint was found to be “vague” and backed up by insufficient evidence. The applicant had not, therefore, shown that the Review Committee’s decision was irrational.45(2018) SGCA 71 at (39). The high threshold of irrationality, therefore, poses challenges even where the court is able to engage more with the evidence presented by an applicant.
Bad faith poses similar evidential difficulties for applicants. Section 33B(4) of the MDA (discussed above) has led to a number of applications for judicial review based on allegations of bad faith. In Ridzuan, the Court of Appeal defined bad faith as the “knowing use of a discretionary power for extraneous purposes (ie, for purposes other than those for which the decision maker was granted the power”)”.46(2015) 5 SLR 1222 at (71). Examples cited by the Court of Appeal of “bad faith” include situations where the court process is used to try a defendant in order to harass him or teach him a lesson, notwithstanding insufficient evidence; promising the defendant immunity from prosecution in exchange for information; and situations where the defendant is charged with a more serious charge in the absence of evidence to put pressure on him to plead guilty to a charge for a less serious offence. This can be difficult for applicants to establish given that they are unlikely to be in possession of evidence to support such allegations.
In Nagaenthran, the applicant sought to substantiate the allegation of bad faith with the fact that the Public Prosecutor made the decision not to issue a certificate of assistance even though the applicant had cooperated fully in providing detailed information to the best of his knowledge and belief. He further argued that his psychiatric condition would have had an impact on his ability to communicate this information cogently and this was not adequately considered when reviewing the information. The High Court concluded that these examples fell short of the kind of examples put forward by the Court of Appeal in Ridzuan. Good faith cooperation is not enough to rationalise issuing a certificate of substantive assistance in the absence of actual results in the disruption of drug trafficking. In addition, even if the applicant’s psychiatric condition restricted his ability to provide useful information, it does not alter the fact that the Public Prosecutor will base the decision to issue a certificate on whether he has received information that does indeed enhance the Central Narcotics Bureau’s operational effectiveness in disrupting drug trafficking activities. This purpose of the substantive assistance regime set out in section 33B of the MDA does not depend on the particular offender’s individual idiosyncrasies.
The High Court’s decision in Adili Chibuike Ejike v Attorney-General47(2018) SGHC 106 (Adili). provides another example of these issues. In Adili, the High Court held that the applicant is not required to produce evidence directly impugning the propriety of the Public Prosecutor’s decision-making process (for example, records of meetings showing that the decision was motivated by malice, bad faith, unconstitutional considerations). The applicant can satisfy the Court by highlighting circumstances that establish a prima facie case that the decision was made in bad faith. However, the court further recognised that the Public Prosecutor will not be required to provide reasons for or justify his decision until the applicant meets the threshold of a prima facie case. This is to prevent sensitive information relating to the Public Prosecutor and/or Central Narcotics Bureau’s deliberation process to enter the public domain.48(2018) SGHC 106 at (22). See also Muhammad Bin Abdullah v Public Prosecutor (2017) 1 SLR 427 at (66). The burden is, therefore, not on the Public Prosecutor to show that it took steps to verify the usefulness of the applicant’s information. In the absence of information from the Public Prosecutor it will be difficult for applicants to establish bad faith.49This is especially as the prosecutor will be accorded a presumption of “regularity” in respect of its’ decision-making (Ridzuan (2015) 5 SLR 1222 at (36); Ramalingam Ravinthran v Attorney-General (2012) 2 SLR 49 at (44) and (47)). As further discussed in Section [2(c)] below, these difficulties are compounded by the court’s refusal to expand the definition of “bad faith” beyond that set out in Ridzuan (restricting it to the “knowing use of a discretionary power for extraneous purposes (ie, for purposes other than those for which the decision maker was granted the power”)”.
2. Recent Developments in the Grounds of Judicial Review
The traditional grounds of judicial review in Singapore are illegality, irrationality and procedural impropriety.50Tan Seet Eng v Attorney-General & Anor (2015) 2 SLR 453. Lord Diplock’s judgment in Council for Civil Service Unions & Ors v Minister for the Civil Service51(1985) AC 374. famously expounded the content of each of these grounds:
“By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it … By “irrationality” I mean … a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it … I have described the third head as “procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision.”
This framework for organising the grounds of judicial review in administrative law is likely to be tested in Singapore. Bad faith and substantive legitimate expectations52Chiu Teng @ Kallang Pte Ltd v Singapore Land Authority (2014) 1 SLR 1047; SGB Starkstrom Pte Ltd v Commissioner for Labour (2016) 3 SLR 598. are not grounds that fit neatly into these three categories. This section considers recent cases that expound on the nature of “bad faith” as a ground of review. It also looks at a possible new formulation of “error of fact” as a ground of judicial review: which again does not fit neatly into the traditional categories of judicial review. Finally, it considers developments in the test for apparent bias in Singapore.
(a) Error of Fact
In the case of AXY & Ors v Comptroller of Income Tax,53(2018) SGCA 23. the applicant challenged the Comptroller of Income Tax’s response to an exchange of information request made by the National Tax Service of the Republic of Korea (NTS). The NTS was investigating possible tax evasion by the appellants and had sent a request for information to the Comptroller pursuant to Article 25(1) of a bilateral treaty: the Convention between the Republic of Singapore and the Republic of Korea for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income 77 (Convention). Article 25(1) is incorporated into domestic legislation via section 105D of the Income Tax Act (Cap 134, 2014 Rev Ed). The relevant part of the provision reads that the:
“the competent authorities of the Contracting States shall exchange such information as is foreseeably relevant for carrying out the provisions of this Convention or to the administration or enforcement of the domestic laws concerning taxes of every kind and description imposed on behalf of the Contracting States … ”
There were various communications between the NTS and Comptroller over a period of months – in the course of which the Comptroller sought and obtained clarifications on the NTS’ request. Following this exchange, the Comptroller exercised his power to issue production notices to three banks in Singapore for the disclosure of banking activities relating to the appellants and related companies. The appellants applied for leave to judicially review the Comptroller’s decision. They applied for prohibiting orders to prohibit the disclosure of information to the NTS and a quashing order for the production notices. The appellants challenged the Comptroller’s decisions to issue the production notices on the grounds of illegality and irrationality. The focus in this section is on the discussions relating to “illegality”. On this, the appellants had argued that the Comptroller had failed to make sufficient prior inquiries into whether the Request complied with the requirements of the Convention and, in particular, whether the requested information was “foreseeably relevant”. Specifically, the Comptroller had:
- failed to properly evaluate whether the NTS had pursued all means available within its own jurisdiction to obtain the information;
- not ascertained whether the Request was “in conformity with the law and administrative practices” of Korea (the appellant disputed their Korean tax residency and argued that the information sought related to periods covered by time bars applicable in Korean law);54A requirement set out in para 7 of the Eight Schedule of the Income Tax Act.
- breached his duty to ensure that the Request from NTS was clear, specific and legitimate and not a fishing expedition for broad and sweeping scope of information spanning more than a decade; and
- had improperly delegated his decision-making power to the NTS given acceding to the request without sufficient inquiry.
The focus here is on the Court’s approach to (ii). On this argument, the Court of Appeal concluded that the Request by the NTS was in conformity with the domestic law and administrative practices of Korea. Specifically, it rejected the argument that there was a mistake “that gives rise to unfairness”.55(2018) SGCA 23 at (90). In addition, there was no “mistake” because the alleged mistake about the appellant’s tax residency was “contentious and not objectively verifiable”.56Ibid at (92). Although not cited in the judgment, the conceptualisation of “mistake of fact” here resonates with that set out in the English case of E v Secretary of State for the Home Department.57(2004) QB 1044 (E). In the E case, the English Court of Appeal explicitly rejected the possibility of viewing material error of fact as a species of other grounds of review (most notably, irrationality and, presumably, also illegality) rather than as an independent ground of review in its own right. The Court held that a mistake of fact giving rise to “unfairness” was a separate head of challenge, at least in those statutory contexts where the parties have a shared interest in co-operating to achieve the right result (arguably the case with the exchange of information regime under the relevant treaty). The rationale for extending the Court’s jurisdiction to reviewing errors of fact (arguably more squarely concerned with merits than the legality of a decision) was “fairness”. Precisely, the fact that decisions based on wrong facts are a cause of injustice which the courts should be able to remedy. In extending the law in this direction, the court in E was responding to concerns that the applicants had incorrectly invoked the court’s appellate jurisdiction to hear appeals “on questions of law” from the Immigration Appeals Tribunal. The “unfairness” in question occurred where there was a mistake as to an existing fact; the fact in question was uncontentious and objectively verifiable (echoing the language used by the Court of Appeal in AXY,58(2018) SGCA 23 at (92). and the applicant or his advisers was not responsible for the mistake and finally the mistake played a material (even if not decisive) role in the tribunal’s reasoning. In utilising similar nomenclature for reviewing the purported mistake in AXY and tagging “mistake of fact” to “unfairness”, the Singapore Court of Appeal introduces – obliquely – the principles from E. Currently in Singapore, “errors of fact” can only be reviewed for sufficiency of evidence if the fact in question is a “precedent fact”;59R v Secretary of State for the Home Department, ex parte Khawaja (1984) AC 74. See also Re Fong Thin Choo (1991) 1 SLR(R) 774 at (33), (35). otherwise it is reviewed on the basis of, for example, the reasonableness of the decision.60Tan Seet Eng v Attorney-General (2015) 2 SLR 453 at (53). See also Secretary of State for Education and Science v Tameside Metropolitan Borough Council (1977) AC 1014; R v Secretary of State for the Home Department, Ex parte Zamir (1980) AC 930. This conceptualisation of mistake of fact and its interrelationship with precedent fact review will need to be clarified by the courts in a case where the point is argued more fully.
(b) Rule Against Bias
The test for establishing apparent bias has been the subject of significant debate in Singapore. The courts have over time referred to two separate tests: the “reasonable suspicion test” and a test based on establishing a “real likelihood of bias”. The former test considers whether there are circumstances that would give rise to a reasonable suspicion in a fair-minded person with knowledge of the relevant facts that the decision-maker in question was biased.61Re Shankar Alan s/o Anant Kulkarni (2007) 1 SLR(R) 85 at (91) (Re Shankar). The latter looks at whether the fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility that the decision-maker was biased.62Porter v Magill (2002) 2 AC 357; arguably the version that formed the basis for discussion in Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board (2005) 4 SLR 604 (Tang Kin Hwa). There are conflicting views on whether these two tests were substantively different (or just semantically so) and, if so, in what way they were different.63The court in Tang Kin Hwa adopting the view that there was no real difference but the court in Re Shankar taking the view that were formal and substantive differences between the two tests. See also Lionel Leo and Chen Siyuan, “Reasonable Suspicion or Real Likelihood: A Question of Semantics?” (2008) Singapore Journal of Legal Studies 446; Chen Siyuan and Kenny Lau, “The test for apparent bias”, SLW Commentary, Issue 1 / May 2014; Tham Lijing, “The Rule Against Apparent Bias – Language Disguising Thought” Singapore Law Gazette July 2014.
This was clarified recently, albeit not in a case involving an administrative law challenge. However, the principles set out in that case are likely to be applied across to public law challenges. In BOI v BOJ,64(2018) SGCA 61. one of the parties to divorce proceedings made allegations of, inter alia, apparent bias on the part of the Presiding Judge. The Judge refused to recuse herself. On appeal, the Court of Appeal took the opportunity to clarify the law on apparent bias. It held that it was now well established that the test for apparent bias is the reasonable suspicion test. The Court reiterated that while any conflict between the two tests is more apparent than real, there is nevertheless both conceptual and practical merit in adopting a standard terminology.65The apparent versus real difference between the tests comes down to the fact that there “is a fundamental commonality in perspective: under both tests, the court is to adopt the vantage point of a reasonable observer…(in) our view, once it is appreciated that there is this commonality in perspective, there is no longer a significant difference between the two tests”: (2018) SGCA 61 at (29).
Having resolved the precise formulation of the test, the Court, for the first time, set out a comprehensive description of how a judge ought to personify the “reasonable observer” when applying the apparent bias test. On this, they defined the reasonable observer as having the following characteristics:66(2018) SGCA 61 at (98)-(102).
- The extent of knowledge that the reasonable observer is taken to have. Here, judges should adopt the perspective of a non-judicial observer and the information on which such observers make their determinations. The reasonable observer should not be taken to have detailed knowledge of the law or court procedure, or insider knowledge of the character, inclinations or ability of the members of the relevant court.
- The court can assume that a reasonable observer is informed. Although not a legal practitioner, the reasonable observer is not uninformed or uninstructed about the law and issues to be decided. A reasonable person can be taken to have informed themselves of all the relevant facts that the public are capable of knowing. The reasonable observer would also be able to consider this information in its proper context.
- A reasonable observer can also be taken to know of the “traditions of integrity and impartiality that administrators of justice in general have to uphold”.67(2018) SGCA 61 at (100). They will not reach hasty conclusions based on isolated actions on the part of a decision-maker.
- The reasonable observer is fair-minded and not “‘complacent nor unduly sensitive or suspicious’ … [but] reserves judgment on every point until he or she has seen and fully understood both sides of the argument”.68(2018) SGCA 61 at (100) citing Johnson v Johnson (2000) 201 CLR 488 at (53). This involves understanding how to distinguish between relevant and irrelevant facts and how to attribute weight to facts. The reasonable observer can be detached in their perspective.
In this case, the Court of Appeal also sought to resolve two open questions on the scope of apparent bias. First, is prejudgment on the part of a decision-maker a case of apparent or actual bias? Second, is excessive judicial interference or interference in a hearing by an adjudicator considered an example of bias? On the first, the Court defined the rule against prejudgment as prohibiting a decision-maker from reaching a final decision before considering all the evidence and arguments and the surrender of judgment, approaching the matter with a closed mind. The Court recognised that the preponderance of authority has referred to prejudgment as something that amounts to apparent bias.69(2018) SGCA 61 at (108) (citing Sim Yong Teng v Singapore Swimming Club (2016) SGCA 10 at (47)). Therefore, to establish prejudgment amounting to apparent bias an applicant will need to establish that the fair-minded, informed and reasonable observer would, after considering the facts and circumstances available before him, suspect or apprehend that the decision-maker had reached a final and conclusive decision before being made aware of all relevant evidence and arguments which the parties wish to put before him or her, such that he or she approaches the matter at hand with a closed mind.
On the second question, however, the Court concluded that excessive judicial interference is distinct in some ways from apparent bias. Although the fact of excessive judicial interference may also give rise to a possible case of apparent bias the ground of “excessive judicial interference” goes further. The latter also guards against “the risk of a fair trial being compromised because of the failure of a decision-maker to observe his proper role and his duty not to descend into the arena … and is borne out of the fact that the system of justice in Singapore is founded on an adversarial model rather than an inquisitorial model…and not impeding a party’s presentation of its case”.70(2018) SGCA 61 at (112)-(113) (citing Re Shankar at (2007) 1 SLR(R) 85 (107), (110) and Mohammed Ali bin Johari v Public Prosecutor (2008) 4 SLR(R) 1058 at (175(b))). A complaint of excessive judicial interference does not depend on appearances or the impressions of a fair-minded observer, but on whether the Court itself is satisfied that the manner in which the adjudicator acted impaired its ability to properly hear and assess the case presented by each side.
(c) Bad Faith
The discussion in Section [1(b)] above demonstrated the difficulties an applicant faces at the leave stage when making allegations of bad faith. Those difficulties are compounded by the fact that in Ridzuan, the court rejected the applicant’s argument that “bad faith” should be interpreted broadly. This would include situations where the Public Prosecutor took into account improper considerations, did not consider appropriate facts and circumstances and/or failed to follow proper procedures leading to a miscarriage of justice. If it had been accepted, this would arguably broaden bad faith to include aspects of the traditional grounds of judicial review (notably, illegality and procedural impropriety). The Court of Appeal was not willing to expand the definition in this direction, preferring the narrower definition set out in Section [1(b)] above. The effects of this conclusion may be ameliorated in the case of the MDA if the Court of Appeal broadens the scope of judicial review under section 33B(4) in Nagaenthran, as argued for in Section [1(a)] above.
3. Conclusion: The Future of Administrative Law – Clarifying the Foundations and Scope of Judicial Review in Singapore
The cases in 2018 have provided the courts with the opportunity to consider and consolidate the position in Singapore on a number of key aspects of administrative law. This is likely to be a recurrent theme in the cases going forward, especially as more individuals are turning to the courts, the latter demonstrating “an increase in public consciousness vis-à-vis the reviewability of decisions made by public authorities and the checking function played by the courts against executive excess”.71Denise Wong Huiwen and Makoto Hong, “Raising the Bar: Amending the Threshold for Leave in Judicial Review Proceedings” (2016) SAcLJ 527 at (1). The decisions discussed here have led to or will (in future cases) lead to the clarification of the position on ouster clauses, the test for apparent bias and review for error of fact. The continued stream of applications for judicial review on the back of a perceived heightened public consciousness, will further nudge the development of the law. We are, therefore, likely to also see the coming of age of a number of other grounds of judicial review, specifically irrationality and substantive legitimate expectations.72See generally Kenny Chng “An Uncertain Future for Substantive Legitimate Expectations in Singapore: SGB Starkstrom Pte Ltd v Commissioner of Labour (2016) 3 SLR 598” (2018) 29 Public Law 192; and Swati Jhaveri, “Localising Administrative Law in Singapore: Embracing Inter-Branch Equality” (2017) 29 SAcLJ 828.
As the courts develop the principles of administrative law, there will also be an opportunity to clarify the scope of and interaction between the various constitutional principles that are typically said to inform the advance of judicial review in a particular direction. Indeed, one of the most recent expositions on these principles was in the context of the court’s deliberations on whether or not to formalise the recognition of the doctrine of substantive legitimate expectations in Singapore. In the case of SGB Starkstrom Pte Ltd v Commissioner for Labour,73(2016) 3 SLR 598. while declining to decide on the future of the doctrine in that case, the Court of Appeal set out the principles that ought to be used to guide judicial review. First, under the constitutional doctrine of the separation of powers, the Court’s limited role in judicial review is “premised on a proper understanding of the role of the respective branches of government – especially, in this context, the Executive and the Judiciary – in a democracy where the Constitution reigns supreme”.74(2016) 3 SLR 598 at (58) (citing Tan Seet Eng v Attorney-General (2016) 1 SLR 779 at (99)). The judiciary’s role is restricted to reviewing the legality of administrative action, not the merits or wisdom of it. Secondly, courts must uphold Parliament’s intention (as expressed in statute) to vest certain powers in the Executive.75Ibid (citing Tan Seet Eng v Attorney-General (2016) 1 SLR 779 at (64) and (99)). Finally, courts must be aware of the limits of institutional competence. For example, courts may not be equipped to adjudicate on policy, security or polycentric matters. This vision of judicial review is informed by the separation of powers. Sitting next to the principle of the separation of powers is the principle of legality: “[a]ll [legal] power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power”.76Chng Suan Tze v Minister for Home Affairs (1988) 2 SLR(R) 525 at (86); Chan Sek Keong, “Judicial Review – From Angst to Empathy” (2010) 22 SAcLJ 469 at (8) (Chan, “Judicial Review”). The symbiosis of these two constitutional imperatives will need to be worked out as administrative law develops.77Chief Justice Sundaresh Menon, “Executive Power: Rethinking the Modalities of Control”, Annual Bernstein Lecture in Comparative Law at Duke University School of Law, 1st November 2018 at para (65).
The development of the principles of judicial review in administrative law will also need to be done with an awareness of the development of the executive’s own mechanisms for redress and achieving the ends of good governance. In a recent extra-judicial speech, Chief Justice Sundaresh Menon looked at intra-branch control of executive power in Singapore and, in particular, the “diffusion of executive power” as a mode of controlling power. This includes the depoliticisation and distancing of key executive functions and offices (such as the Attorney-General and Elected Presidency) from the elected political executive.78Chief Justice Sundaresh Menon, “Executive Power: Rethinking the Modalities of Control”, Annual Bernstein Lecture in Comparative Law at Duke University School of Law, 1st November 2018, Section III (Intra-Branch Controls). This idea of diffusing executive power as a mode of control can be taken further: through a dispersal of executive power across a wider network of administrative bodies working in concert with each other for the attainment of the public interest, and as a mode of checking the other’s exercise of power. This appears to be the intention behind the Public Sector (Governance) Act 2018. The long title of this Act states that it provides “for a consistent governance framework across public bodies in Singapore and to support a whole-of-government approach to the delivery of services in the Singapore public sector”. Section 3 further states that the vision of the Act is “to establish a consistent system of governance and accountability … to clarify the accountability relationship between public bodies, their members, the responsible Ministers and the government; and … to require and support a whole-of-government approach to the delivery of services in the Singapore public sector”. In addition to the Public Sector (Governance) Act 2018, the Town Councils (Amendment) Act 2017 was passed to enhance the enforcement of duties of financial prudence on the part of town councils.79See also Attorney-General v Aljunied-Hougang-Punggol East Town Council (2015) 4 SLR 474; Attorney-General v Aljunied-Hougang-Punggol East Town Council (2016) 1 SLR 915; Benjamin Joshua Ong, “Enforcing Town Councils’ Duties of Financial Prudence: Problems Addressed by the Town Council (Amendment) Act 2017” (e-first, (2018) SAcLJ).