Administrative law in Singapore

Administrative law in Singapore is a branch of public law that is concerned with the control of governmental powers as exercised via its various administrative agencies. It enjoins administrators – Ministers, civil servants or public authorities – to act fairly, reasonably and in accordance with the law.

Administrative law arose as a response to the advent of the Administrative State, a 20th century product of English administrative law, which system Singapore inherited at Independence. Like the English system, Singapore does not have a separate system of specialist administrative courts as is the case in most civil law jurisdictions. Singapore courts are generally conservative in their approach towards administrative law, drawing heavily from English case law in some respects but not engaging in innovative elaboration of the existing heads of judicial review.

The High Court of Singapore conducts judicial review of administrative action in Singapore by exercising its supervisory jurisdiction.

In light of modernization and the resulting necessity for a more interventionist state, administrative law has an increasingly important role to play in Singapore to ensure that the vulnerable individual has protection and practical remedies against abuse of power by the state. This is particularly so in Singapore’s hegemonic, Westminster-based form of parliamentary government where the executive dominates the legislative agenda, because the alternate means of political control by holding the executive accountable to the popular legislature is almost negligible. The judiciary thus exists as an independent check on executive power and it fulfils this function through judicial review of administrative action. This review jurisdiction of the Court is contrasted with its appellate jurisdiction in that the latter is derived from the statutory framework, while judicial review is a power inherent as part of the Court’s supervisory jurisdiction. Both are designed to address two different types of wrongs that an administrative decision-maker may commit.

Judicial review is available as a means of challenging the legality of decisions of all governmental authorities, albeit that it is to be regarded as a procedure of last resort which should be used only where the individual has no alternative remedy such as a right of appeal. If there is an appeal, it is more favourable that a citizen appeals as the appellate court may substitute its decision of the original authority and to grant a remedy. An appeal may well involve a reconsideration of the merits of the case, not merely its legality, although this depends on the wording of the statute.

The following summarizes the framework of the various heads of claims for judicial review in Singapore administrative law. Remedies however, will not be considered.

Introduction

Approaches to Administrative law

Administrative law poses a problem to the breadth of judicial power insofar as it enquires: on what basis can judges control administrative action, and to what extent should they do so? Current legal thought and practice on administrative law can be seen to crystallize around two contrasting models labeled by Harlow and Rawlings in their book, Law and Administration, as "red-light" and "green-light" perspectives. The "red-light" perspective is more conservative and control oriented, while the "green-light" perspective is more liberal or socialist in orientation and facilitative in nature.

Red-light perspective:

This embodies deep-rooted suspicion of governmental power and a desire to minimize the encroachment of the state on the rights of individuals. This envisions the courts being locked in an adversarial or combative relationship with the Executive and functioning as a check on administrative power, hence the "red-light".

Green-light perspective:

The focus here is not so much on actively resisting the administrative bodies as a form of negative control (as in the "red-light"), but instead, to raise areas where the administrative bodies may improve in various administrative procedures. This approach is derived from the utilitarian tradition, and the priority in achieving the objective (greatest good for the greatest number) is to encourage the contribution of the state via means of egalitarian and ameliorative social reform so as to deliver communitarian goals, hence the "green-light".

In Singapore, the courts emphasizes a largely green-light approach.

Approach in Singapore:

Along the lines of the government's focus on efficiency, Singapore emphasizes a largely green-light approach.

Accordingly, public administration not a necessary evil but a positive attribute, that the objective of administrative law is not primarily to stop bad administrative practices but to encourage good ones. In this approach, recourse to the judiciary would not be the first line of defence against administrative abuses of powers. Instead, control can and should come internally from Parliament and the Executive itself in upholding high standards of public administration and policy. Ie. seek good government through political process and public avenues rather than redress bad government through the courts. Courts play a supporting role by articulating clear rules and principles by which the Government may abide by and conform to the rule of law.

Heads of Judicial Review of Administrative Action

In the seminal UK case of Council of Civil Service Unions v Minister for the Civil Service ("GCHQ"), the House of Lords identified three well-established broad grounds under which a claim for judicial review of administrative action may be made:

1. illegality,
2. irrationality, and
3. procedural impropriety.

These grounds do not form a conclusive list, and Lord Diplock stated “[t]hat is not to say that further development on a case by case basis may not in course of time add further grounds. There is the possible adoption in the future of the principle of "proportionality" which is recognised in the administrative law of several of our fellow members of the European Economic Community”.

The Singapore Court of Appeal affirmed the GCHQ case in Chng Suan Tze v. Minister for Home Affairs. The Singapore courts have largely been consistent in following this framework.

Illegality

Distinction between errors of fact and errors of law

In general, judicial review of administrative action is limited to cases involving errors of law and not errors of fact. The courts are primarily concerned with the legality of decisions, and not with their merits. There are two main reasons for this distinction between errors of law and errors of fact. Firstly, based on the separation of powers, the courts have no position to decide on a fact when the power to do so has been assigned to another body. This was articulated in Puhlhofer v. Hillingdon London Borough Council where Lord Brightman stated that "... it is the duty of the court to leave the decision of that fact to the public body to whom the parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely." The second reason is that the courts may not have the necessary expertise to assess the factual situation. Hence it is best the courts leave any interpretation of facts up to those assigned by parliament to do so.

However, there are instances where the court will review an error of fact:

1. Error of jurisdictional (precedent) fact;
2. Irrelevant considerations; and
3. No evidence and error of material fact.

Whether the public authority was empowered to make a decision

Simple ultra vires

The doctrine of simple ultra vires is that a public authority cannot act beyond the powers conferred upon it by the law, usually in statutes. In deciding the scope of powers conferred upon the public authority by such a statute, the ‘reasonably incidental’ rule comes into play when interpreting its meaning. The courts often do not take a strict reading of the statute, but instead extend the powers beyond what is expressly provided by the wording to include tasks regarded as ‘reasonably incidental’ to the original tasks authorised.

A case of simple ultra vires is where the decision maker did not have the power that it purported to have and that there was therefore no basis in law for the impugned action. In Attorney General v Fulham Corporation, the courts held that the Corporation was only empowered by statute to provide washing facilities for the residents to wash their clothes adequately. Hence the laundry service implemented by the Corporation was ultra vires. The doctrine was also applied in Wong Yip Pui v Housing and Development Board.

Error as to a Precedent Fact

Error of precedent fact is made when a decision-maker makes a decision in the absence of facts, which must exist objectively before he has the power by legislation to decide. Here, the courts are not concerned with the evaluation of facts, but whether the facts exist for the decision maker to exercise his power.

White & Collins v Minister of Health is the leading English authority on error to precedent fact. in that case, the statute in question was S75 of the Housing Act 1936, which stated that powers were not to be exercised over land forming any 'part of any park, garden, or pleasure ground... '. Hence, the order could be made only if it was established that the land in question did not fall within the categories mentioned in S75. The courts eventually found the land to be part of a park, and hence the order was quashed due to error of precedent fact.

This is likewise the law in Singapore. In Chng Suan Tze v Minister for Home Affairs, it was held that the respondents, who made an order for the arrest of the appellants under S8(1) of the Internal Securities Act, had done so unlawfully. Under S8(1), establishing the President's satisfaction was a condition precedent to the Minister's power to make detention orders, and the burden was on the respondents to produce such evidence. Hence, without establishing the precedent fact, the Minister did not have the power to make an order for arrest, and the appeal was allowed. This case also restated that the original scope of judicial review is limited to the normal judicial review principles of "illegality, irrationality and procedural impropriety" as in the GCHQ case only when there involved the establishing of a precedent fact does the courts courts discretion extend to include deciding whether the condition was indeed established.

Whether the public authority properly exercised its discretion to make the decision

Errors of Law

Broad Ultra Vires (Jurisdictional Errors of Law and Non-jurisdictional Errors of Law)

Traditionally, a distinction was drawn between these jurisdictional errors of law and non-jurisdictional errors of law. A jurisdictional error of law is one where the court decided on a case even thought it did not fall within its jurisdiction. in such an event, the case is open for judicial review by the courts. On the other hand, a non-jurisdictional error of law is one where the case falls within the jurisdiction, but the judge’s decision was illegal. In such a case, the courts are not allowed to intervene when called upon for judicial review, save for certain circumstances such as a breach of natural justice. These rules apply to public authorities in their exercise of power in making decisions as much as it applies to courts and tribunals.

However, in English law, the decision in Anisminic Ltd v Foreign Compensation Commission (“Anisminic”) is seen as having done away with this distinction (even though that was not the court's intention), and all errors of law are now considered jurisdictional and ultra vires. Parliament only confers powers on the basis that it is to be exercised on the correct legal basis. Hence any misdirection in law will render the decision ultra vires. This means that courts can now intervene in all cases involving error of law.

It is still undecided whether the Singapore courts will follow the position in UK as set out in Anisminic. Reference to the case was made in Stansfield Business International Pte Ltd v Minister for Manpower (“Stansfield”). However, the decision in Stansfield was based on the breach of natural justice and not on the doctrine of error of law, hence the holdings in relation to Anisminic is strictly speaking, obiter dicta. On the other hand, the courts in Leong Kum Fatt v AG, after considering Anisminic, appeared to stand for the continued distinction between jurisdictional errors of law and non-jurisdictional errors of law. this has been followed by the later case of Re Shankar Alan s/o Anant Kulkarni ("Re Shankar Alan"). This decision, however, is still open to review, since it was decided at the level of the High Court.

Errors of Law on the Face of the Record

Before Anisminic, one ground on which the courts could quash non-jurisdictional errors was where it was an error of law on the face of the record. Such an application would be available if a mistake of law was revealed by perusal of the record of the proceedings. this ground is still applicable in Singapore today, as seen in Re Application by Yee Yut Ee where the order of the Tribunal was quashed because they held, contrary to law, that the director was to be personally liable for the debts of the incorporated company.

Even though it is not certain whether the decision in Anisminic will be adopted in Singapore, it is important to note that the case has put into question the applicability of the grounds for review of errors that are intra vires. Anisminic means that it is no longer possible to distinguish errors of law on the face of the record and other errors of law. Since a misdirection in law in making a decision renders the decision ultra vires, then any error in reaching the decision can be quashed for errors of law.

No Evidence and Error of Material Fact

It has been established that courts are willing to review decisions that were based on insufficient evidence , or where the public authority has made a decision based on an error of material fact. However, the latter proposition has not yet been considered by the Singapore courts. Hence, it remains uncertain whether it is part of Singapore law.

A court has the power to review a decision if it was unsupported by evidence, or if the evidence was not reasonably capable of supporting the decision. This was accepted by the High Court in Fong Thin Choo, when it approved the decision of Secretary of State for Education and Science v Tameside MBC that the court was able to inquire into whether the relevant facts existed and that it had to be satisfied that there was a sufficient factual basis for the decision to have been made. The court in that case further stated that the relevant test of validity was whether the decision-maker could “reasonably have come to his decision on the evidence before him” and that he must have “a factual basis for making the evaluation”.

An error of material fact occurs when there is a “misunderstanding or ignorance of an established and relevant fact’ and/or where the decision-maker acts ‘upon an incorrect basis of fact” The English Court of Appeal in E v Home Secretary went on to hold that the courts can intervene where such a mistake of fact causes unfairness to an individual. The relevant conditions are that:

First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning.

This ground of judicial review has yet to be considered by a Singapore court and as such, it is yet uncertain whether it will form part of Singapore’s administrative law.

However, certain criticisms have already been made against this ground of judicial review, especially with regard to the scope of for judicial intervention. “It is difficult to identify with certainty where the boundaries of intervention for reasons of "fairness" are to be found as "fairness" is an “open-ended common law construct” and as such, is subject to many different interpretations. This might result in the courts having too much discretion in reviewing cases and it may be that "fairness" will be “used to justify intervention in an ever more broad range of cases”.

Relevant and Irrelevant Considerations

Courts are willing to review cases where it is shown that the decision-maker failed to take into account all relevant considerations and/or to disregard irrelevant considerations. Such considerations are usually identified expressly or impliedly in the statute that underpins the decision. Courts may also intervene in cases where there are matters “so obviously material to a decision on a particular project that anything short of direct consideration of them by the ministers … would not be in accordance with the intention of the Act”.

The High Court has allowed for judicial review of a decision when it found that the decision-maker took into account irrelevant considerations. Although the information was based on facts, it [had] no probative value as there [was] no substratum of facts to found the inferences”. It has also been willing to set aside a past decision if it can be shown that the decision-maker failed to take into account relevant considerations.

In R v Somerset County Council, ex parte Fewings, the English Court of Appeal set out three categories of consideration:

First, those clearly (whether expressly or impliedly) identified by the statute as considerations to which regard must be had. Second, those clearly identified by the statute as considerations to which regard must not be had. Third, those to which the decision-maker may have regard if in his judgment and discretion he thinks it right to do so.

Simon Brown LJ went on to elaborate on the third category, stating that the decision-maker had limited discretion to decide what considerations to take into account in his reasoning process, but that those considerations could not be be Wednesbury unreasonable.

Other considerations include resources, i.e whether it is relevant for public authorities to take into account the resources available to them when making discretionary choices in respect of the performance of their duties. These duties are generally imposed by legislation and give authorities discretion as to how to meet the objectives of the Act while working within a finite budget. Often, the answer will depend on how the courts interpret the overall legislative scheme. In certain cases, the court might find that the need for services could not be assessed without having some regard to the cost of providing them, while in others the court might decide that financial resources was an irrelevant factor.

And the fundamental liberties possessed by a person. However, this has been held to be irrelevant by the English Court of Appeal in R v Headteacher and Governors of Denbigh High School. The court in that case held that what mattered was the actual outcome of the decision making process and whether it infringed upon the rights of the individual, the quality of the decision making process was not as significant.

Once a decision-maker has determined that a particular consideration is relevant to its decision, it is entitled to go on to accord little or no weight to that consideration. The question of whether something is a material consideration is a question of law, which the court is entitled to decide, while the question of the weight it should be given is a question of planning judgment, which is entirely a matter for the planning authority.

Improper Purpose

Where statute grants a power for a particular purpose, it is unlawful for the decision-maker to exercise that power for another purpose. The purpose of the statute is left to be determined by the court from their interpretation of either the express terms of the statute or implicitly from its overall reading.

General

In Singapore, a broad approach has been taken towards the finding of improper purpose in the exercise of the decision-maker’s power for which the decision can be reviewed. In PP v Pillay M M, the High Court held that the Minister had not exceeded the statutory power given to him as the main purpose of the rules he had imposed were consistent with the objective of the Act, i.e to regulate traffic on the roads. Collecting fees from cars entering the ‘restricted zone’ was merely incidental to the desired purpose. Hence, if a decision-maker exercises his power for an improper purpose, it will not be unlawful if it is only incidental to the main purpose.

The court also will order a review of the decision if it is found that the decision-maker was frustrating the object of the statute in exercising his power.

In interpreting the relevant provision of the Act to determine its purpose, reference should be made to s 9A of the Interpretation Act, which states that a purposive approach is to be taken. The meaning of the statutory provision has to be viewed with reference to the contents of the entire legislation.

The judge has to place himself in the draftman’s position and “ascertain what facts were within the draftsman’s knowledge, and what statutory objectives he had both generally and as to the particular provision to be construed”. After doing so, the judge will then be in a position to read the statutory language in its “primary and most natural sense which it bears its context”.

It has also been said that reference to Hansard is only applicable if the meaning or effect of the section is “too ambiguous or obscure or such as to give rise to absurdity”. In such cases, it is then permissible for the courts to look at external materials to aid them in interpreting the provision.

Mixed Purposes

In cases where the decision-maker is exercising his power for multiple purposes, it will not be unlawful so long as the dominant purpose for which he is exercising his power is lawful. It has to be shown that the unlawful purpose was the primary object and not just something the decision-maker contemplated. Hence, even if the incidental purpose is unlawful, the court may still refuse to review the case.

Fettering Discretion

The principle behind fettering discretion is that decisions may be challenged if the exercise of discretion is fettered, i.e the decision-maker adheres too rigidly to the adopted policy guidelines designed to structure discretion. It is legitimate for public authorities to formulate policies that are "legally relevant to the exercise of their powers, consistent with the purpose of the enabling legislation, and not arbitrary, capricious or unjust". However, the authorities must remain free to depart from their policies depending on the case at hand. It is a general rule that “anyone who has to exercise a statutory discretion must not shut his ears to an application.” The authority must always be willing to listen to anyone with something new to say.

The Singapore High Court has stated in Lines International Holding (S) Pte Ltd v Singapore Tourist Promotion Board ("Lines International") that the adoption of a general policy by a body exercising an administrative discretion is perfectly valid provided that:

(a) the policy is not unreasonable in the special sense given to the term in Associated Provincial Picture Houses Limited v Wednesbury Corporation , ie it is not a decision that is so outrageous in its defiance of logic or accepted moral standards that no sensible person who applied his mind to the question to be decided could have arrived at it or that no reasonable person could have come to such a view;

(b) in considering unreasonableness in the Wednesbury sense, the courts are not entitled to substitute their views of how the discretion should be exercised with that actually taken, nor is unreasonableness established if the courts merely come to the view that such a policy or guideline may not work effectively as another since the courts are not exercising an appellate function in respect of administrative decisions; and the burden of proving that the policy or guideline is illegal or ultra vires is on the plaintiffs;

(c) they are made known to the persons so affected; and

(d) neither PSA nor STPB fetters its discretion in the future and is prepared to hear out individual cases or is prepared to deal with exceptional cases.

In British Oxygen Co Ltd v Minister of Technology, the House of Lords held that there were two general grounds on which the exercise of an unqualified discretion could be attacked. First, if the discretion was exercised in bad faith. And second, if the decision was so unreasonable as to show that there could not have been any real of genuine exercise of discretion.

Hence, so long as the decision-maker genuinely considers all the evidence, is willing to consider exceptions and applies the guidelines in a flexible manner, the court is unlikely to find that the exercise of discretion is fettered.

Wrongful Abdication, Delegation or Dictation

It is generally unlawful for a decision-maker to delegate his statutory power of decision to another person or body, unless it is expressly provided for in the statute. But this does not mean that civil servants or local government officials are prevented from making decisions on behalf of ministers or local authorities. It is not possible for the central government to make every individual decision; it will also have to rely on others for help. Hence, even when the statute refers to the ‘minister’, parliament will expect only that the power be exercised by an appropriate official. In what is known as the alter ego principle, the decision of such an official will be attributed to the minister. “The minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority.”

In Singapore, this principle has been applied in Lines International. The High Court held that since the PSA was the authority vested with control over the berths, it could not abrogate its responsibility by taking orders from other statutory boards unless it was under a legal duty to do so. If on the evidence the court concludes that the relevant authority has fettered its discretion by taking instructions from other people or bodies, its decision will be invalid. The authority has to come to a decision based on its own discretion taking into account other relevant facts or evidence.

Irrationality or Wednesbury Unreasonableness

In GCHQ, Lord Diplock equated the second main ground of Irrationality with Wednesbury Unreasonableness:

“By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury unreasonableness’. It applies to 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.”

Irrationality or ‘Wednesbury unreasonableness’ seeks to ensure that public body’s discretion does not deviate from substantive principles at common law, which exist independently of principles in statute. This includes real exercise of discretion, taking into consideration of relevant factors in statute, ignoring of irrelevant collateral matters, regarding public policy, being reasonable.

Wednesbury unreasonableness as applied in the UK courts differ from that in Singapore. It has been commented that a sliding scale of judicial review (varying levels of scrutiny) features in the UK depending on the nature of the case circumstances, with matters of political judgment such as national security and financial administration requiring a higher level of unreasonableness to be proved than matters where the individual's fundamental liberty is at stake.

Summary of the differing standards of intensity in the UK

Type of Review	Test
Non-justiciable	For a recent case, see e.g. R (on the application of Campaign for Nuclear Disarmament) v Prime Minister.
Super-Wednesbury	“so absurd that the decision-maker must have taken leave of his senses”: Secretary of State for the Environment, Ex Parte Nottinghamshire County Council “The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the court must necessarily be in holding a decision to be irrational. That is good law and, like most good law, common sense. Where decisions of a policy-laden, esoteric or security-based nature are in issue, even greater caution than normal must be shown in applying the test, but the test itself is sufficiently flexible to cover all situations” per Sir Thomas Bingham in R v Ministry of Defence Ex p Smith ("Ex p Smith").
Basic Wednesbury	“… a decision that elicits the exclamation ‘my goodness, that is certainly wrong!’” R v Devon CC ex p George “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”: GCHQ.
“Anxious scrutiny”; “Enhanced level scrutiny”;“Rigorous examination”	“Reasonableness in such cases is not, however, synonymous with "absurdity" or "perversity". Review is stricter and the courts ask the question posed by the majority in Brind, namely, "whether a reasonable Secretary of State, on the material before him, could reasonably conclude that the interference with freedom of expression was justifiable". This test lowers the threshold of unreasonableness. In addition, it has been held that decisions infringing rights should receive the "most anxious scrutiny" of the courts.” de Smith, Woolf and Jowell, Judicial Review of Administrative Action 5th Edition at para 13-060, approved by Roch LJ in R v Saville Inquiry Ex p A and others. Can the decision "confidently enough said to have been correct"? The court may not interfere with the exercise of an administrative decision on substantive grounds save where the court is satisfied ... that it is beyond the range of responses open to a reasonable decision-maker but in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above. (per Sir Thomas Bingham in Ex p Smith.)

The approach in Singapore

Singapore, in contrast to the UK, has thus far applied what appears to be the basic standard of Wednesbury unreasonableness.

The justification for this is based on the doctrine of separation of powers. The jurisdiction exercised by the judiciary in Administrative Law is supervisory, as opposed to appellate. This is explained in R v Secretary of State for the Home Department, ex parte Brind, per Lord Ackner as follows:

"[w]here Parliament has given to a minister or other person or body a discretion, the court's jurisdiction is limited, in the absence of a statutory right of appeal, to the supervision of the exercise of that discretionary power, so as to ensure that it has been exercised lawfully. It would be a wrongful usurpation of power by the judiciary to substitute its, the judicial view, on the merits and on that basis to quash the decision. If no reasonable minister properly directing himself would have reached the impugned decision, the minister has exceeded his powers and thus acted unlawfully and the court in the exercise of its supervisory role will quash that decision. Such a decision is correctly, though unattractively, described as a "perverse" decision. To seek the court's intervention on the basis that the correct or objectively reasonable decision is other than the decision which the minister has made is to invite the court to adjudicate as if Parliament had provided a right of appeal against the decision - that is, to invite an abuse of power by the judiciary.”

The reluctance in Singapore to follow the UK in lowering the Wednesbury unreasonableness standard on a case basis may be explained by reference to the Green Light emphasis of Judicial Review, and Judicial Deference to the Political Branches of Government in most matters.

One rare instance where a public authority’s decision was found to beWednesbury unreasonable, is the case of Mir Hassan bin Abdul Rahman v Attorney-General ("Mir Hassan").

In Mir Hassan, the issue concerned a decision of the Strata Titles Board (STB) not to amend a hearing date for approval of a condominium's Sale and purchase Agreement (S&PA). The applicants were representatives of the Sale committee of a condominium, which under a Sale and purchase Agreement (S&PA) with the purchasers, were required to obtain a Strata Titles Board (STB)’s approval by 25th July 2008. However, the STB only scheduled a hearing on the 7th of August 2008. Unable to obtain the purchaser's approval to extend the deadline, the applicants then applied to bring forward the hearing date, but was dismissed by the STB’s registrar. The applicants appealed, inter alia, on grounds of the decision being Wednesbury unreasonable.

The Singapore High Court allowed the claim, holding that the STB's decision not to extend the deadline for the Sales Committee to seek approval was Wednesbury unreasonable:

"However, different considerations may arise in exceptional circumstances such as those in the present case, where the STB’s own deadline of six months to make a final order or determination with respect to the application for the en bloc sale is just a few days after the deadline under the S & PA for obtaining the STB’s approval for the en bloc sale and the STB is in a position to complete the hearing before the latter deadline. Whether or not it was wise for the sale committee to await the STB’s decision in the Gillman Heights case before applying for the requisite approval of the en bloc sale of Tampines Court, the STB’s decision to schedule the resumed hearing on 7 August 2008, which is beyond its mandate and is an exercise in futility, was, in the circumstances of this case, unreasonable in the Wednesbury sense.

Procedural Impropriety

Mandatory and directory requirements

The legal consequences of non-compliance with procedural or formality requirements is wholly or partly dependent on whether the requirement in question is mandatory or directory. It is worth nothing that the courts may read a requirement as both mandatory and directory; that is mandatory as to substantial compliance, directory as to precise compliance. Old cases usually regarded an act done or decision reached in breach of a mandatory requirement as a nullity and void ab initio. On the other hand, an act done in breach of a directory provision is merely voidable and therefore effective until set aside. In deciding whether a provision is mandatory or directory, the courts will look at its purpose and relationship with the scheme, subject matter and object of the statute in question, and must assess the importance attached to it by parliament. The determination will depend on context and whether, for instance, a mistake is found to be trivial or whether individual rights are obviously prejudiced by the failure to observe the requirement.

A provision will usually be declaratory if it relates the the performance of a statutory duty rather than to the exercise of a power on individual interests. If a procedural code established in statute is intended to be exhaustive and strictly enforced, its provisions are mandatory.

Duty to consult

A duty to consult interested parties before reaching a decision may be imposed by statute, or arise by way of a legitimate expectation on their part.The courts are reluctant to imply a statutory duty to consult in the absence of factors leading to a legitimate expectation, or to imply such duty other than those actually required by statute to be consulted.The duty to consult is almost invariably regarded as mandatory and, where there is consultation, it must be adequate.The duty of consult was held to be a mandatory requirement in the English cases of Agricultural, Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms and Grunwick Processing Laboratories Ltd v Advisory Consultation and Arbitration Service.

In the absence of a pronouncement by the Singapore courts on this matter, the English decision in R v Brent London Borough Council, ex p Gunning is useful as Hodgson J laid out the basic requirements of a legal duty to consult: (i) consultation must be at a time when proposals are at a formative stage; (ii) the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response; (iii) adequate time must be given for consideration and response; and (iv) the product of consultation must be conscientiously taken into account in finalising any statutory proposals.

The decision-maker must carry out consultation with an open mind,but is not bound by views expressed to him. The consultees must be given sufficient information to enable them to express their views and sufficient time in which to do so.

Duty to give reasons

There is no general law which requires reasons to be given for administrative decisions.There is also no general statutory requirement for decision-makers to provide reasons.

However, subject to the requirements of fairness, a decision-maker should consider whether in the particular facts of the case, reasons should be given. A failure by the decision-maker to provide reasons may justify an inference that its reasons are bad in law or that i has exercised its powers unlawfully.The rationale behind the argument for a decision-maker to provide reasons is that it is one of the cornerstone of a good administration. Furthermore, if some right or interest such as livelihood or property is at stake, or if there is some legitimate expectation, reasons should be given when a decision is adverse to the applicant for judicial review.

The current position in Singapore is similar to that of the general law. In Re Siah Mooi Guat where the Minister of Home Affairs rejected the applicant's appeal against the cancellation of her re-entry permit and employment pass, the High Court held that the Minister was under no duty to give reasons for his decision in common law nor under the Immigration Act. Conversely, in Malaysia, some cases have endorsed the existence of the duty to give reasons and explained its scope.

Legitimate expectation

The origins of this doctrine lie in common law fairness and the idea than an individual who will be affected by a decision can expect that he or she will be consulted in advance of the decision being taken. This is the so-called ‘procedural legitimate expectation'. However, in recent times in the English courts, this doctrine evolved to embrace a substantive dimension whereby a decision-maker may be prevented from going back on, for instance, a lawful representation that an individual will receive , or continue to receive a substantive benefit of some kind. This is the 'substantive legitimate expectation'. A person may have a legitimate expectation of being treated in a certain way by an administrative authority. That expectation may arise from a representation or promise made by the authority, or from a consistent past practice. The expectation must be a ‘reasonable’ one, so that a person’s own conduct may deprive any expectations he may have of legitimacy. The courts take 3 practical questions into consideration in determining whether to give effect to the applicant's legitimate interest:

1. when a legitimate expectation arises;
2. when it is unlawful for a public body to frustrate a legitimate expectation; and
3. what is the appropriate remedy where a public body has unlawfully frustrated a legitimate expectation.

On the first question, in the case of Borissik v Urban Redevelopment Authority, the court adopted the four conditions established in De Smith in determining whether there was a creation of a legitimate expectation:

1. clear, unambiguous and devoid of relevant qualification;
2. induced by the conduct of the decision maker;
3. made by a person with actual or ostensible authority; and
4. applicable to the applicants, who belong to the class of persons to whom the representation is reasonably expected to apply.

On the second question, the courts will have to struck a balance between the private interest of the applicant in the expectation being upheld and the (alleged) public interest in the expectation being frustrated.

While the courts in Singapore seem to have applied procedural legitimate expectation, the position on substantive legitimate expectation is still not clear.

Procedural legitimate expectation

Singapore courts have accepted the existence of procedural legitimate expectation in Singapore as seen in the case of Re Siah Mooi Guat.

In that case, the applicant, a Malaysian citizen, was granted a re-entry permit and employment pass valid until 6 March 1987. However, on 5 September 1986, the Controller of Immigration informed her by letter that she was declared a prohibited immigrant and her re-entry permit and employment pass were cancelled. The applicant appealed to the Minister for Home Affairs to reconsider the matter, but the Minister rejected her appeal. The applicant thus took out an application for an order of certiorari to quash the decision of the Minister and Controller. Counsel for the applicant argued that the re-entry permit which was valid till 6 March 1987 gave the applicant a legitimate expectation that she would be allowed to stay in Singapore until the expiry of the re-entry permit and this legitimate expectation gave her at least two procedural rights: One was an opportunity to afford to the applicant the right to make representations, either orally or in writing, to the Minister before he considered her case under s 8(3)(k) of the Act; and the other was that it imposed a duty on the Minister to give reasons for the two decisions made by him, in deeming the applicant to be an undesirable immigrant. In supporting their argument, counsel for the applicant tried to rely on the case of Schmidt v Secretary of State for Home Affairs, where Lord Denning in his judgment said obiter that where the permit to stay of an alien “is revoked before the time limit expires, he ought, I think, to be given the opportunity of making representations: for he would have a legitimate expectation of being allowed to stay for a permitted time”. However, in dismissing the appeal, the court said that this is not supported by English authority and in any event Lord Denning did not explain in his obiter when the opportunity to make representations ought to be given to an alien. Furthermore, the court also said that the position in Singapore is different as the parliament has provided in our Immigration Act for appeals by aggrieved persons against the decisions of the Controller and of the Minister. And, the applicant had by letter availed herself of that right. The Minister had carefully considered her appeal and had rejected it. Neither in common law nor under the Act was the Minister required to give reasons for his decision.

Substantive legitimate expectation

Thus far, the cases in Singapore have not explicitly or implicitly acknowledge substantive legitimate expectation as part of our law. The closest case we have is probably the case of Borissik.

In that case, the applicant and her husband were joint owners of a semi-detached house with a plot size of around 419m2 and attached to another semidetached house with a plot size of around 244.5m2. In 2002, the URA imposed certain restrictions on the redevelopment of semidetached houses. The URA’s revised guidelines for redevelopment of semidetached houses permitted a semi-detached house to break away if and only if both the semi-detached plot and its adjoining semi-detached plot had a plot size of at least 400m2. The URA rejected the applicant’s application that she and her husband submitted for the demolition of their semi-detached house standing and for its replacement with a detached bungalow. Dissatisfied, the applicant obtained leave to apply for a mandatory order to quash the said decision. One of her arguments was that she had a legitimate expectation that her proposal would be approved, in other words, she was seeing for substantive protection of her legitimate expectation. However, in the end, the court decided that the URA had made no clear representation to her since she could not point to any promise made to her by a person with actual or ostensible authority to justify any legitimate expectation of the sort claimed by her. She also did not establish that the URA’s officers had conducted themselves in a way that could have led her to have a legitimate expectation that her redevelop plans would be approved. Therefore, the application was dismissed since the applicant could not establish a legitimate expectation and the case should not be read as the judge implicitly acknowledging that legitimate expectations can be substantively enforced.

Natural justice

The twin elements of natural justice are the rule against bias ("nemo judex in causa sua")and fair hearing ("audi alteram partem")

First element: Impartiality - Rule against natural bias

One of the twin elements of natural justice is the rule against bias ("nemo judex in causa sua"). This means that no one should be a judge of his own cause and this is so as to ensure that decision-makers will not be biased or prejudiced in a way that precludes a genuine and fair consideration of the arguments or evidence presented by the parties. Bias need not be actual actual, but may be apparent or imputed as well.

Actual Bias

A decision-maker will be regarded as actually biases where it can be shown that he or she was either

1. influenced by partiality or prejudice in reaching the decision, or
2. actually prejudiced in favour of or against a party.

Actual bias is to be proven on a balance of probabilities and on the part of a decision-maker is a conclusive vitiating factor for his or her decision. However, objections and applications based on what, in case law, is called “actual bias” are very rare as proof of actual bias is often very difficult.Chee Siok Chin v AG

In Chee Siok Chin, counsel for the applicants alleged that the judge was guilty of actual bias and asked for the judge to be recused. The grounds of the recusal were that:

1. Housekeeping matters in relation to the OS and the O 14 summonses should not be heard together. In so doing, the court was biased and that such matters should be held in open court.
2. Despite objections to Mr Singh being present in chambers by the applicants, the court still allowed him to sit in chambers and to even raise objections on the Notice of Appeal.
3. Mr Ravi was interrupted by Mr Chan and when Mr Ravi was appealing to the court to stop Mr Chan, the court instead chose to “tick [Mr Ravi] off”.
4. The court had prejudged the Notice of Appeal. It was said that the judge shook her head when Mr Ravi was handing to her the Notice of Appeal.

However, the court rejected the recusal application as the jugde felt that a fair-minded and reasonable observer would hardly on those flimsy grounds cited by Mr Ravi (assuming the incidents have been accurately depicted), conclude that she would not be able to make an objective and impartial decision of the matters placed before her as would the next judge. This case thus illustrates the difficulty in proving actual bias. The reason for such a difficulty is due to the fact that the law does not countenance the questioning of a judge about extraneous influences affecting his mind; the policy of the common law is to protect litigants who can discharge the lesser burden of showing a real danger of bias without requiring them to show that such bias actually exists.

Imputed Bias

When the decision-maker has a pecuniary or personal interest in relation to the parties in the decision, he or she will be disqualified from making the decision on the basis that there is imputed bias. If the adjudicator has a pecuniary interest in the case, however small the interest is, it will be enough for the decision to be set aside. As for personal interest, if it can be shown that for example, an adjudicator has already indicated partisanship by expressing opinions antagonistic or favourable to the parties before him, or has made known his views about the merits of the very issue or issues of a similar nature in such a way as to suggest prejudgment, or because of his personal relationship with a party, the court is likely to impute bias.

Apparent Bias

Courts will disqualified a decision by the decision-maker if it can be proven that there was apparent bias. There appear to be two tests adopted by the courts in so far as apparent bias is concerned. The first – and less stringent – one is what has been termed the “reasonable suspicion of bias” test. The other has been termed the “real likelihood of bias” test. As can be seen in the Singapore cases of Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board and Re Shankar Alan s/o Anant Kulkarni, the difference between these two tests are not clear. In the former, Phang J.C. expressed his view that there are no difference in substance between the two tests, whereas, in the latter, Sundaresh Menon J.C. felt that there are important difference between the two tests - one being more stringent than the other and the court's view against the reasonable man's view. However, despite this, it is to note that both these high court cases acknowledge that the "reasonable suspicion of bias" test is the applicable test in Singapore currently.

In the case of Jeyaretnam Joshua Benjamin v Lee Kuan Yew, the Court of Appeal endorsed the "reasonable suspicion of bias" and held that the applicable test was: would a reasonable and fair-minded person sitting in court and knowing all the relevant facts have a reasonable suspicion that a fair trial for the applicant was not possible? Though this is the current position in Singapore now, there have been academic views that this test should be varied a little - by changing the reasonable man in the court to a reasonable man on the streets and to apply a different standard for the reasonable man if the applicant belongs to some specific profession.

Second element: Fair hearing

An important element of natural justice is fair hearing ("audi alteram partem"). The essence of fair hearing is that the person whose conduct is sought to be impugned should be told clearly what case he is to meet. The case against him should not be left to conjecture.

Generally, the rule applies only to conduct leading directly to a final act or decision, and not to making a preliminary decision or investigation designed to obtain information for the purposes of a report or a recommendation on which a subsequent decision may be founded. However, there are also many situations where the rule will be presumed not to apply. For example, the rule does not apply where compliance with it is inconsistent with the need for taking urgent preventive or remedial action; or with the interests of national security; or with the deportation of undesirable aliens; where disclosure of confidential information to an interested party is prejudicial to the public interests; where it is impracticable to give prior notice or an opportunity to be heard; where a hearing would serve no useful purpose; or in some cases where Parliament shows its intention to exclude its application by conferring on an authority wide discretionary power.

Right to be informed in advance of the case to be met (notice of charge)

The rules of natural justice require that persons liable to be directly affected by the outcome of any decision must be given prior notification of the action proposed to be taken, of the time and place of any hearing that is to be conducted, and of the charge or case they will be called upon to meet. There is also a necessary implication that notice must not only be given, but that it was sufficient and accurate, to enable a party to understand the case they have to meet and to prepare their answer and their own case. Furthermore, natural justice is concerned with procedural fairness prior to and during the adjudication of the courts or administrative tribunals. Therefore when the cases speak of “notice”, they refer to prior notice of the offence, the charges that will be preferred and the hearing at which a decision will be made. The requirement of notice does not mean that the accused or the person affected is also entitled to notice of the final decision of the court or tribunal if they choose to absent themselves from the proceedings and then omit to make any inquiries. Since the pronouncement of disqualification is made in open court, there should be no further need to notify the accused of the order of the court.

In Chiam See Tong v Singapore Democratic Party ("Chiam See Tong"), the plaintiff raised an action claiming for wrongful expulsion from the Singapore Democratic Party ("SDP"). Warren Khoo J held that the SDP's central executive committee ("CEC"), while conducting disciplinary hearing to question the plaintiff's comments to press, had not given the plaintiff a fair hearing because the plaintiff had not been told with any precision the case he had to meet. Warren Khoo J was of the view that "the conduct of the disciplinary proceedings as a whole fell far short of the norm of fairness which a disciplinary tribunal in the position of the CEC may be expected to observe". Consequently, the High Court granted the plaintiff a declaration that the decision of the CEC purporting to expel him from the SDP was unlawful and invalid; and an injunction restraining the SDP from expelling the plaintiff from the SDP or taking any steps to do so.

In the subsequent case of Chng Wei Meng v PP, the appellant was given a written warning pursuant to s 42 of the Road Traffic Act ("RTA") which spoke of the possibility of the disqualification from driving if he failed to attend court. An oral warning to the same effect was also given to the appellant. Before the appellant was arrested under s 43(4) of the RTA for driving while under disqualification, he was disqualified from driving after failing to attend court. The appellant appealed against his conviction and claimed, inter alia, that there was a breach of natural justice because the written warning and the requirements of s 42A(1)(d) of the RTA were discrepant, and he was not served a disqualification notice. Yong Pung How CJ dismissed the appeal by first stating that in order for notice to be vitiated by non- compliance with s42A, the non-compliance must be fundamental, substantive and material in nature. However, this was not so on the facts of the case. Secondly, to find a breach of natural justice, the applicant must prove that he had suffered substantial prejudice or injustice as a result of the non-compliance with s 42A, since there is no such thing in law as a technical breach of natural justice. This was not the case on the facts as there was little prejudice caused to the appellant since he read the notice and knew of the consequences for not attending court but he promptly forgot all about it.

In Mohammed Aziz bin Ibrahim v Pertubohan Kebangsaan Melayu Singapura, the plaintiffs, who were members of a political party, had their membership terminated by the party's Disciplinary Committee in their absence. The plaintiffs alleged that the were not given enough time to prepare their defence. The High Court, in a judgment delivered by Tan Lee Meng J, held that there was a breach of natural justice as the plaintiffs were given inadequate notice of the meeting of the Disciplinary Committee and the party had deprived them a reasonable opportunity to prepare their defence against the numerous charges faced by them.

Right to be heard

When a justiciable issue arises, the decision-maker must give each party a fair opportunity to present his case and to correct or contradict any relevant statement prejudicial to him. Generally, it is a denial of natural justice to fail to disclose to a party specific evidence relevant to the decision if he is thereby deprived of an opportunity to comment on it.

In Dow Jones Publishing Co (Asia) Inc v Attorney-General, the appellant was owner of a foreign business newspaper circulating in Singapore. After some altercations with the Monetary Authority of Singapore, the Ministry of Communications and Information ("the Ministry") restricted its circulation significantly. The appellant applied for certiorari to quash the Minister's decision, with one of the grounds, inter alia, being that the Minister did not act fairly by failing to give an opportunity to the appellant to explain or deal with the articles involved in the altercations with the Monetary Authority of Singapore. However, Chan Sek Keong J (as he was then), dismissed this ground he did not observe any unfairness nor thought that the appellant had been prejudiced in any way by the Minister not giving them an opportunity to make representations.

A contravention of the right to be heard was found in the more recent case of Kay Swee Pin v Singapore Island Country Club. The appellant had applied to be a member of the respondent club and had simultaneously declared her spouse in the application form. Soon after, the respondent's general committee discovered that there were discrepancies in the appellant's marriage certificate. The general committee then charged the appellant with falsely declaring her spouse and referred the matter to the respondent's disciplinary committee which came to the opposite conclusion. The general committee declined to adopt the disciplinary committee's conclusion and subsequent recommendations. One of the grounds of the appeal was that there were breaches of natural justice because, inter alia, the appellant was not given an opportunity to respond to the general committee in the first place. Chan Sek Keong CJ ruled for the appellant because the court held that if the general committee had wanted to be the primary fact finder, then it should have allowed the appellant to respond to the allegations of discrepancies in her marriage certificate. Moreover, since the disciplinary committee had heard the appellant and found her explanation credible, the general committee should have asked itself why the former had concluded so. Consequently, the court allowed the appeal and granted the judicial review.

Fair conduct of the hearing

The rule of natural justice applies to domestic tribunals which derive their authority from parliament. An offender brought before a tribunal must not only be given a hearing, but he must also be given a fair hearing. Yung Pung How J (as he was then) discussed this in Wong Kok Chin v Singapore Society of Accountants ("Wong Kok Chin"):

In our system of justice the process is adversarial and not inquisitorial. This necessarily means, in the case of a Disciplinary Committee of a professional body, that it must approach the issues before it with an open mind, it must also listen to the evidence for and against the offender, and to what he may have to say in his defence; and it must then make up its mind whether, on all the evidence before it, the offender has been proved to be guilty of the offence. In hearing evidence, a Disciplinary Committee may seek clarification on points in the evidence which are not clear, but in doing so it must at all times avoid descending into the arena, and joining in the fray. In the last instance, it is there to judge as best it can; it is not there to supplement the prosecution. It must remember that, in conferring statutory authority on it, Parliament intended that it will act fairly; if it does not do so, it will be acting ultra vires.

The same applies to a judge while conducting a trial. In Mohammed Ali bin Johari v Public Prosecutor ("Mohammed Ali bin Johari"), Andrew Phang JA held that the judge must be careful not to descend (and/or be perceived as having descended) into the arena, thereby clouding his or her vision and compromising his or her impartiality as well as impeding the fair conduct of the trial by counsel and unsettling the witness concerned.

The pronouncement in Wong Kok Chin was followed in the later case of Ng Chee Tiong Tony v Public Prosecutor where Lee Seiu Kin J set aside the conviction of the trial judge as the trial judge had descended into arena and joined the fray. Although the trial judge was entitled to seek clarifications, he had went beyond that by encroaching into the public prosecutor's duty to bring out evidence to prove its case when he asked the sole witness almost as many questions as the public prosecutor. Conversely in Mohammed Ali bin Johari where one of the grounds of appeal against the appellant's conviction for murder was that the trial judge had engaged in excessive judicial interference, the Court of Appeal held that the trial judge did not descend into the arena as he did not interrupt (let alone cross-examine) counsel or the parties in such a manner as to give rise to prejudice (or the appearance of prejudice) to either party. Neither, was it suggested that the Judge had been guilty of any of these proscribed actions.

Where breaches of the rules of natural justice are alleged, the key question lies in asking whether the individual concerned was given the opportunity to present his case and whether he suffered any prejudice as a result of any unfairness in the conduct of the proceedings. This was so held in Ho Paul v Singapore Medical Council., where the appellant, a doctor, was appealing against the respondent's decision to fine and suspend him for professional misconduct. One of the key issues raised on appeal was whether natural justice was breached (when the appellant did not avail himself to counsel) because: (a) the appellant had declined to cross-examine the respondent's key witness but the respondent's disciplinary committee had failed to warn him of the "legal implications" of this; and (b) the disciplinary committee had failed to ensure that the appellant had appreciated the importance of making a mitigation plea. On the issue of cross-examination, legal commentators have rephrased the issue as whether the absence of cross-examination renders the decision unfair in all the circumstances. V K Rajah JA held that "[a]dditional duties are not foisted on a tribunal merely because the individual is unrepresented – advising a person who has been charged of his litigation strategies and options is the duty of an advocate and solicitor, not the adjudicator", consequently there was no breach of the rules of natural justice as the appellant had been given the opportunity to present his case and cross-examine the witnesses, and had also been invited to make a mitigation plea.

Another point of note is that members of an inquiry tribunal should not communicate independently or privately to any material witness unless they are disclosed straightaway to the parties concerned. This was declared in Re Low Fook Cheng Patricia (a solicitor). The appellant, a lawyer, was applying to set aside a sanction by the Law Society for misconduct. Choo Han Teck JC declared that it "was unfair for the advocate and solicitor concerned to have been adjudged on an issue in which a material witness had given a private statement to a member of the adjudicating tribunal without the knowledge of the advocate and solicitor concerned. By so doing the tribunal pierces the veritable armour of impartiality which every tribunal exercising judicial or quasi-judicial functions must don."

Others rights related to Fair Hearing

In Kok Seng Chong v Bukit Turf Club, Michael Hwang JC considered the issue of whether there was a right to legal representation before a domestic tribunal in Singapore and held that, following the position in common law, a person coming before a domestic tribunal has no inherent right at common law to be allowed legal representation.

See also

• Law of Singapore
• Supreme Court of Singapore

Further reading

Articles and websites

• Chan Sek Keong, Chief Justice of Singapore (2010), "Judicial Review – From Angst to Empathy: A Lecture to Singapore Management University Second Year Law Students", Singapore Academy of Law Journal: 469.
• Steele, Iain (2005), "Substantive Legitimate Expectations: Striking the Right Balance?", Law Quarterly Review, 121: 300 {{citation}}: Unknown parameter |month= ignored (help).
• Chen Siyuan & Lionel Leo (2008), "Case Note, "Natural Justice: A case for Uniform Rigour"'", Singapore Academy of Law Journal, 20: 820.

Books

• Leyland, Peter; Anthony, Gordon (2009), Textbook on Administrative Law (6th ed.), Oxford; New York, N.Y.: Oxford University Press, ISBN 978-0-19-921776-2 (pbk.).
• Tan, Kevin Y[ew] L[ee]; Thio, Li-ann (1999), "Law and the Administrative State", The Singapore Legal System (2nd ed.), Singapore: Singapore University Press, ISBN 9971692120 (hbk.).
• Thian, Yee Sze; Chong, Chin Chin; Lim, Sharon (2002), In Session: Supreme Court Singapore: The Building, her Heritage and her People, Singapore: Supreme Court of Singapore, ISBN 978-981-047-671-7.
• Halsbury's Laws of Singapore, vol. 1, Singapore: Butterworths Asia, 2009 reissue {{citation}}: Check date values in: |year= (help)CS1 maint: year (link).

External links

• Official website of the Parliament of Singapore
• Official website of the Supreme Court of Singapore
• Singapore Statutes Online