SG Admin Law Flashcards
Overview
- Chng Suan Tze: CA held that all power given by law has legal limits and that the rule of law demands that Courts should be able to examine the exercise of discretionary power.
JR aimed at determining compliance with the law, fair hearing and rationality in decision-making. - Yong Vui Kong v AG [2010]: Steven Chong J ID’d 3 factors courts have considered themselves unable to review-
(1) Where the matters are one of political or subjective preference: absence of objective legal standards;
(2) Where Courts lack specialist knowledge; and
(3) Where matters are polycentric (involves multiple concerns and perspectives) which are ill-suited to an adversarial adjudicatory method which involves only 2 parties.
Procedural aspects of judicial review
- Powers rooted in inherent jurisdiction of Court. Aims to:
A. Delimit the competence and responsibilities of different state actors;
B. Protect constitutional rights and values; and
C. Ensure that Govt actions conform to legal stds. - Art 93 Constitution: Judicial power of SG shall be vested in a Supreme Court and in such subordinate courts as may be provided by any written law for the time being in force.
SC can grant constitutional remedies (State courts have no jurisdiction).
Preliminary Matters:
Remedies
- O 53 RoC and S 27 Supreme Court Judicature Act provide the procedural backbone for JR.
- 2 groups of remedies:
(1) Prerogative public law remedies (remedies specific to public law have no power in private law like contract or tort)
a. Quashing order: Quash OG decision should Court find some illegality or ultra vires with ref to the decision.
b. Mandatory order: Mandate the making of a fresh decision and suggest some parameters in the admin of making that fresh decision.
c. Prohibiting order: Prohibits implementation of OG decision that is being challenged in JR proceedings.
(2) Private law remedies (has parallels in private law; declaratory relief may be applied for under O53):
a. Injunction
b. Declaration
Preliminary Matters:
Leave for Judicial Review
Case must have sufficient merit (to weed out frivolous cases or cases which would unduly impose burden on Courts and admin).
3 requirements to be satisfied [KA Jeyaretnam v AG [2014]]:
A. Leave: Material before the Court discloses an arguable case or a prima facie case of reasonable suspicion in favour of getting the remedies sought by A;
B. Susceptibility to JR: the subj matter of the complaint is susceptible to JR; and
C. Locus Standi: A has sufficient interest in the matter.
Preliminary Matters:
Leave for Judicial Review -
Leave
- Courts aim to strike balance b/w not allowing frivolous cases to go forward but at the same time, recognising the early stages of the proceedings (i.e. not wanting to go into a full hearing straight away).
- Chan Hiang Leng Colin v Minister for Information and the Arts [1996] 1 SLR(R) 294
A must establish prima facie case of reasonable suspicion. Courts will examine materials quickly and decide if threshold is satisfied. - Public Service Commission v Lai Swee Lin Linda [2001] 1 SLR(R) 133: Leave will be granted if there appears to be a point which might, on further consideration, turn out to be an arguable case in favour of granting to A the relief claimed.
- Teng Fuh Holdings Pte Ltd v Collector of Land Revenue [2006] 3 SLR(R) 507: T owned land which SLA acquired for public purpose in 1983. 22 years later, T (licensee) applied for a quashing order of SLA’s declaration of acquisition as done in bad faith since the land acquired by SLA was subsequently rezoned for residential purposes after 22 years of inaction.
Held: Leave can only be granted if T can establish an arguable case or a prima facie case of “reasonable suspicion” of bad faith. On the facts, T just wanted to take advantage of land value if it was used for residential purposes rather than for public purposes.
Preliminary Matters:
Leave for Judicial Review -
Susceptibility to JR (General)
- Issue of whether the case is appropriate for O53 as a matter of procedure.
- Creates specifics to the procedure to prevent frivolous and vexatious claims to promote an element of finality of decision-making by administration and a level of legal certainty. - Action must be brought under O53 for public law cases, and cannot use civil procedures to evade procedural protections (O’Reilly v Mackman [1992]), e.g. avoiding the time limit of 3 months by attempting to sue in contract.
Preliminary Matters:
Leave for Judicial Review -
Susceptibility to JR -
Is it a public law case?
[UDL Marine v Jurong Town Corporation [2011] 3 SLR 94]
[UDL leased land from JTC, applied to renew its lease. JTC informed UDL that it would not be renewing the lease. UDL applied for a quashing order, claiming that JTC exercised its discretionary power irrationally, and that JTC had breached rules of natural justice or had failed to give effect to UDL’s legitimate expectations.]
A. Source of Power test:
1. Is the public body that is making the decision, making the decision under some form of statutory framework or statutory power? Or, are they making the decision under contract?
a. UDL Marine v Jurong Town Corporation [2011]:
Held: When JTC decided not to renew UDL’s renewal applications, it was exercising its private contractual rights under the lease. The source of JTC’s powers to stipulate the factors, and its application of those factors to reach its decisions lay in the lease.
b. Public Service Commission v Lai Swee Lin Linda [2001]: Lai was on 1 year’s probation as Sr Officer in Land Office in MinLaw in Nov 1996. She received a good appraisal after the first year; and cfm’n of permanent tenure due by Nov 1997. Lai told that cfm’n would be a formality. She then alleged to her immediate superior shortcomings in 2 sr officers. Lai received adverse reports and her probationary period extended by a year. After probation, employment terminated. Applied for leave to apply for quashing order and mandatory order under O53. Rubin J granted leave bc there was a prima facie case of reasonable suspicion and matters fell within public law. PSC argued that the case was not susceptible to JR, on the basis that the case was a matter of private law as it involved contractual rights.
Held: Court found that the case was not amenable for JR as parties were essentially dealing with employment dispute under the employment contractual documents that parties had entered into.
c. Tey Tsun Hang v NUS [2015] SGHC 7: Simply establishing that NUS is a public body in one particular context does not make all its decisions susceptible to JR. On the facts, the r/s b/w NUS and Tey was purely contractual.
B. Nature of Decision-making Power:
a. UDL Marine v Jurong Town Corporation [2011]: Nature of decision-making power test requires Court to consider whether R’s decision involved an exercise of public law functions.
Held: Power exercised by JTC to lease land was a private act, not a public law function, since granting leases was “not something a private individual would not be capable of doing”.
Preliminary Matters:
Leave for Judicial Review -
Locus Standi -
Need for a ‘real’ interest - must establish a particular connection with the case
- Vellama d/o Marie Muthu v AG [2013] 4 SLR 1: Law on locus standi is as follows:
a. Must be a public duty which has been breached, w/o such a breach there can be no qn of whether A has standing or not.
b. Where this public duty generates correlative private rights or public rights, A would have locus standi.
c. BUT, in the rare case where a non-correlative rights-generating public duty is breached, and the breach is of sufficient gravity such that it would be in the public interest for Courts to hear the case, A without rights may have locus standi as well, at the discretion of Courts. - Eng Foong Ho v AG (SG CA): Locus standi requirements are to be the same across the different remedies sought, regardless of their historical roots.
Preliminary Matters:
Leave for Judicial Review -
Locus Standi -
Challenge in relation to personal right
- Tan Eng Hong v AG [2012] 4 SLR 476: Not enough for A to show that he had possessed a personal right; he also had to show a violation of that personal right.
- Vellama d/o Marie Muthu v AG [2013]: Appropriate test for determining standing turns on the nature of the rights at stake. Although, regardless of whether it is public or private right, it can be a personal right that can be prosecuted by private citizens, even if the rights are shared with other people.
Preliminary Matters:
Leave for Judicial Review -
Locus Standi -
Public right and special damage
- Jeyaretnam Kenneth Andrew v AG [2014] 1 SLR 345: J challenged a discharge of public duty under the constitution where there was no corresponding violation of a consti right.
Held: Must show some form of special dmg to demo his particular standing to commence JR proceedings.
Court also recognised and emphasised that there is no freestanding public interest type of standing applicable (unless there is egregious or serious illegality). - Vellama d/o Marie Muthu v AG [2013]: Possible to find locus standi where A asserts no more than a public right which is shared in common with other citizens, however, standing accrues only if there is a nexus b/w A and the desired remedy that has been established by demo-ing ‘special dmg’.
a. “Special Damage”: A who asserts public right must demo that his personal interests are directly and practically affected over and above the general class of persons who hold that right, but need not go so far as to show that he is the only person affected. - Tey Tsun Hang v NUS [2015] SGHC 7: Impugned Decisions were not susceptible to JR as they were purely contractual in nature, as b/w employer and employee. Further, they did not involve an exercise of any public law function.
Preliminary Matters:
Exhaustion of Internal Remedies
JR should be seen only as a last-resort remedy (exhaust all means before going to Court).
a. Borissik Svetlana v URA [2009] 4 SLR (R) 92: BS and H dissatisfied with URA’s decision to reject her app for redev of a semi-detached house and for its replacement with a detached bungalow. BS had obtained leave for a mandatory order to quash decision.
Held: App dismissed as BS failed to exhaust remedies before coming to Court.
b. Chiam See Tong v SDP [1993] 3 SLR (R) 774: Chiam convicted in a CEC disciplinary hearing and expelled from the party. Party consti provided for appeal to ordinary party conference. Chiam applied for a declaration and injunction against Ds who argued that Chiam had not exhausted internal remedies.
Held: Exceptional circumstances are needed for Court to allow app for JR without exhausting all the remedies.
** A is obliged to pursue alternative remedies if they are effective in dealing with specific issues (subject to Courts’ discretion).
Grounds of Review:
5 Grounds for JR
[GCHQ [1985] (UK HL)]
- Illegality
a. Relevant/irrelevant Considerations;
b. Propriety of purpose;
c. Not exceeding powers;
d. Preventing fetters on discretion; and
e. Non-abrogation of power. - Irrationality
a. Reasonableness - Wednesbury Test;
b. No duty to disclose reasons;
c. Conditions to adopt gen policy into guidelines; and
d. JR limited to procedure. - Proportionality (not applicable in SG)
- Bad Faith
- Procedural Impropriety
a. Fair Hearing;
b. Actual Bias; and
c. Apparent Bias.
Grounds of Review:
5 Grounds for JR -
Illegality -
Relevant Considerations
- Courts will ensure that the Exec has properly understood the stat parameters in which they are operating (cannot operate beyond its powers).
- Relevant/irrelevant Considerations: In exercising stat powers, Exec has only taken into acc relevant considerations and not irrelevant considerations. Cannot under consider or over consider.
a. Ramalingan Ravinthran v AG [2012] 2 SLR 49: Issue was related to exercise of PP discretion.
Held (CA): AG is entitled to take into acc myriad factors in determining whether to charge an offender, and for what offence to charge.
b. Tan Seet Eng v AG [2015] SGCA 59: Illegality serves the purpose of examining whether decision-maker has exercised his discretion within the scope of his authority. Inquiry is into whether he has exercised his discretion in good faith according to the stat purpose for which the power was granted, and whether he has taken into acc irrelevant considerations or failed to take acc of relevant considerations.
Grounds of Review:
5 Grounds for JR -
Illegality -
Propriety of Purpose
- When Parliament is delegating powers to an admin, it is doing so for a particular purpose and in pursuit of a proper purpose (i.e. can only use stat powers for which it is created).
- Admin measure just needs to be incidental to statute’s purpose: PP v MM Pillay [1977 – 1978] SLR(R) 45: S90 Road Traffic Act provides that Minister may make any rules “generally for the purpose of carrying this Act into effect” and the long title reads “for the regulation of traffic”. D drove into restricted zone during restricted hours w/o obtaining area licence. D was charged, argued that the rules were ultra vires to s90 RTA, claiming that the Minister did not have power under s90 RTA to make rules that prohibit vehicles from using any road except upon obtaining the area licence through payment of fees
Held: Such rules within the Minister’s powers as were conferred by s90 RTA. The imposition of a fee for entering the area was the means adopted to achieve the desired purpose and was merely incidental thereto (of preventing motor congestion).
Grounds of Review:
5 Grounds for JR -
Illegality -
Not exceeding powers
Cannot act ultra vires (as per PP v MM Pillay [1977 – 1978]).
Grounds of Review:
5 Grounds for JR -
Illegality -
Preventing fetters on discretion
- Exec cannot unduly constrain or shrink their powers, e.g. public body must not adopt a policy which precludes it from considering the merits of a particular case, but this does not mean that a public body is precluded from any general policy or rule at all.
- Lines Int’l Holding (S) Pte Ltd v Singapore Tourism Promotion Board [1997] 1 SLR(R) 52: Quotas on a type of cruise were enacted but not done with reference to general policy. Held that guidelines were not found to be invalid.
Grounds of Review:
5 Grounds for JR -
Illegality -
Non-abrogation of power
- Decision-maker must not delegate its power to another body, and thereby surrender its discretion (conversely, a decision-maker must not act under the dictation of another body and thereby also surrendering its discretion).
- Komoco Motors Pte Ltd v Registrar of Vehicles [2007] (SG CA): General principle (an admin agency must not fetter its own power or abrogate it to another admin agency) is an unexceptional principle, and that violation of this principle would amount to a failure by the admin agency in exercising the power vested in it.
Grounds of Review:
5 Grounds for JR -
Irrationality -
Reasonableness + Test
- Courts only review when A is able to establish that there is some kind of irrationality that is so unreasonable and so beyond logic that Parliament could not have intended for that kind of irrationality to prevail. Will look at factors like common law principles.
- Reasonableness:
Decision must be reasonable – Courts will only intervene if decision is seriously flawed. - Wednesbury test: “the authority coming to a decision is so unreasonable that no reasonable body could ever have come to it” [Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948]].
[Mir Hassan bin Abdul Rahman v AG [2009] 1 SLR(R) 134: Must be Wednesbury unreasonable to be found irrational.]
Grounds of Review: 5 Grounds for JR - Irrationality - Re Siah Mooi Guat [1988] 2 SLR(R) 165 - No duty to give reasons
A granted re-entry permit and employment pass, but later revoked. A appealed to MHA, but rejected as well. A applied for Quashing Order on the basis that (1) there was breach of rules of natural justice, (2) A had legit expectation to continue to reside in SG until expiry of permit, (3) MHA’s decision unreasonable and open to Courts for review.
Held: Minister had given A’s case his personal consideration + No evidence to show that he had acted unfairly = Order was not granted.
Test of irrationality cited but higher level of scrutiny exercised; Court declined to require Minister to disclose the info he had relied on, holding that “any information received by the Minister about an alien from any government through official or diplomatic channels, would be information which would not be in the public interest to disclose” and that it was for the Minister and not Court to decide whether disclosure was in the public interest.
However, this has been criticised.
E.g. Jaclyn Neo, “Riots and Rights: Law and Exclusion in Singapore’s Migrant Worker Regime” (2015): “Expulsion is a powerful tool for the state to exercise disciplinary powers over migrant workers. They would be less likely to challenge existing legal norms that keep them economically and socially depressed.”
Grounds of Review:
5 Grounds for JR -
Irrationality -
Lines Int’l Holding (S) Pte Ltd v Singapore Tourism Promotion Board [1997] 1 SLR(R) 52 -
Conditions for admin body to adopt a general policy into guidelines
[Quotas on a type of cruise were enacted but not done with reference to general policy. Held that guidelines were not found to be invalid.]
4 conditions need to be satisfied for an admin body to adopt a general policy into guidelines:
1. Adoption of a general policy must not fetter the discretion of the relevant authorities such that they are unprepared to deal with exceptional cases.
- Guidelines must be made known to persons affected.
- Policy must not be unreasonable in the substantive Wednesbury sense, i.e. 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.
- In considering what is “reasonable”, Courts to vigilantly bear in mind to not sub their views of how discretion should be exercised. Presumption that the policy was legal, and the burden of proving that it was ultra vires lay on Ps.
Grounds of Review: 5 Grounds for JR - Irrationality - Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR(R) 14 - "No reasonable authority"
K involved in a traffic accident, stated that it was due to chronic asthma which she had proof of. TP revoked her driving licence pursuant to s37(6) RTA which had a subjective satisfaction clause. K applied for leave to apply for Quashing Order on grounds of unreasonableness.
Held: To successfully challenge, it is not what Court considers unreasonable that matters; what is relevant is whether the decision is so unreasonable that no reasonable authority could ever have come to it.
On the facts, TP’s decision to revoke K’s licence is not so outrageous in its defiance of logic that no sensible person could have arrived at it.
Grounds of Review: 5 Grounds for JR - Irrationality - Chee Siok Chin v MHA [2006] 1 SLR(R) 582 - JR limited to procedure
Concerned protestors outside CPF building.
Held: Exercise of a stat exec discretion in SG is subject to JR unless expressly excluded by statute. Court can intervene in a decision and/or the implementation of a decision on the basis that it is ultra vires, and/or where there is illegality, irrationality or procedural impropriety.
BUT, is only limited to decision-making process and does not extend to a review of the merits of the decision itself (unless it is Wednesbury unreasonable).
Grounds of Review: 5 Grounds for JR - Irrationality - City Developments Ltd v Chief Assessor [2008] 4 SLR(R) 150 - JR limited to procedure
CDL acquired land but was hoarding it to artificially impact the property market. Chief assessor taxed the 5% method instead of hypothetical tenancy method, and CDL objected to the assessment change. In front of the Valuation Review Board, Chief Assessor argued that 5% method was to encourage devt of land rather than hoarding. CDL argued that Chief assessor had acted irrationally.
Held:
1. Not acting irrationally. Perfectly valid for a stat board to adopt a general policy in exercising its stat powers, provided certain conditions were met, including that such policy not be considered unreasonable in the Wednesbury sense.
- Courts will also only confine review of reasonableness to the decision-making process. On the facts, policy of 5% method was adopted to discourage and prevent land hoarding and this was not irrational considering the scarcity of land in SG.
Grounds of Review:
5 Grounds for JR -
Proportionality -
Not applicable
- Admin authority maintains a proper balance b/w purposes pursued and adverse effects of the decision on rights, liberties, and interests of persons affected. Cannot be more drastic than is necessary for attaining the desired results.
- Has already been rejected as a separate ground of review by Chan Hiang Leng Colin v Minister for Information and the Arts [1996] 1 SLR(R) 294.
- Chee Siok Chin v MHA [2006] 1 SLR(R) 582: Notion of proportionality has never been part of the common law in relation to JR of the exercise of a legislative and/or an admin power or discretion. Nor has it ever been part of SG law.
