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Singapore old Supreme Court

Amenability

Similar to the United Kingdom’s position, judicial review in Singapore is confined to matters of public law and the applicable tests are the ‘source test’ and ‘nature test’. For a decision to be amenable to judicial review, the decision must have been made by a public authority, concerning a public right. It is worthy to note however, that the effect of the ‘nature test’ is greatly restricted in practice due to the insistence on the difference between contractual and governmental powers. Subsequent case laws in the United Kingdom have persisted in applying the narrow approach whereby the “existence of contract continues to place disputes on the private law side of the public-private divide”. This can be seen in the case of R v Disciplinary Committee of the Jockey Club, ex p Aga Khan [1993].

It appears that the narrow approach applies in Singapore. Even so, in Singapore, there has yet to be a line of cases with persistent application of the narrow approach. In fact, the ‘nature test’ continues to be applied and developed.

Nevertheless, the tests are not always decisive. Singapore Courts have held certain public law functions as not being amenable to judicial review and have amended decisions of private bodies, disregarding the established tests.

Tests of Amenability

A. “Source” Test

In Council of Civil Service Unions v Minister for the Civil Service [1985], Lord Diplock stated that for a decision to be susceptible to judicial review, the decision-maker must be empowered by public law and the ultimate source is nearly always a statute or subordinate legislation. However, this test ignores many situations where decisions are not dependable on legal rules which were endorsed by the State. This became an increasing worry in the modern polity as more privatised utilities and private bodies perform governmental functions that could potentially escape any form of scrutiny.

B. “Nature” Test

In R v Panel on Take-overs and Mergers [1987], Lloyd LJ acknowledged that the Source Test is usually decisive, but disagreed that it is the sole test to determine whether the body is subject to judicial review. In this case, the issue was whether a body discharging functions that are quasi-judicial in nature and wielded considerable de facto public powers, was amenable to judicial review. The Panel is an unincorporated association and did not derive its power from a public source as it was an informal body which adopted a self-regulatory code to govern its members. However, the Panel possessed “immense de factor power” and its decisions would have led to other sanctions which indirectly affect the rights of citizens. Lloyd LJ explained that it is instead helpful to look at the nature of the power whether the body in question exercises public law functions or if the exercise of its functions has public law consequences.

C. Position in Singapore

In the United Kingdom, uncertainty remains whether the Source Test or Nature Test ought to be the determining test. However, the impact of R v Panel on Takeovers and Mergers[1987] remains qualified in light of other decisions where source of power is the determining factor. The decision in Panel was confirmed in Public Service Commission v Lai Swee Lin Linda[2001] (“Linda Lai”), where the respondent, an employee with the Land office, had her probationary period extended without prior warning. Her employment contract was later terminated. It was contended that the statutory bodies that decided her appeal have relevant powers under legislation. However, the Court ruled that the Source Test is not always conclusive and when statutory bodies make certain decisions, it does not invariably follow that they are exercising a statutory power. In the present case, adopting the Nature Test, there was a contract of employment between the Government and the respondent. The powers exercised by the statutory bodies were derived from the contractual terms of service and the decisions were not susceptible to judicial review.

In UDL Marine (Singapore) Pte Ltd v Jurong Town Corporation[2011], Linda Lai was acknowledged as the leading authority in Singapore on determining the amenability to judicial review with the two tests applied. In the present case, Jurong Town Corporation ("JTC") had leased land to UDL and refused to renew the lease after the term expired. It was held that even though the Jurong Town Corporation Act conferred JTC with power to lease land, it did not prescribe the terms on which JTC may lease land and considerations to be taken into account. The power to exercise leasing of land was treated as a private act as it “was not something a private individual would not be capable of doing”. The court added that even though there was an element of public interest, this carried insufficient weight to render the function performed a public one.

D. Recent Applications of the Nature Test in Singapore

In the case of Yeap Wai Kong v Singapore Exchange Securities Trading Ltd [2012](“SGX-ST”), the Court analysed other factors to determine if the decision by SGX-ST to reprimand a director of a company listed under the Stock Exchange was properly characterized as a public function. These factors include the extent to which the SGX-ST is interwoven into the legislative and regulatory matrix, whether the reprimand function has a statutory underpinning and the nature of the reprimand function. Even though the SGX-ST is not a statutory board, the SGX-ST is an approved exchange under s 16 of the Securities and Futures Act, which provides that it must take into account the interests of both the investing and general public when discharging its obligations. Also, SGX-ST is a vital part of the institutional ecosystem of Singapore’s financial sector. Its function to public reprimand of a listed company’s directors may potentially result in adverse business reputational implications and the director’s continued service on board committees and directorships of other listed companies. For these reasons, the Nature Test was satisfied.

E. Application of Natural Justice in Contract rather than Judicial Review

Private associations and country clubs have no obvious public law function, yet the courts exercise judicial review over their decisions and proceedings, such as disciplinary hearings and depriving persons of their memberships. This is to ensure that they are fair and comply with the requirements of natural justice.

The jurisdiction of the courts in reviewing the decisions of domestic tribunals is of a limited nature. It is not the function of the court when exercising such supervisory jurisdiction to resolve issues of fact which were tithing the proper sphere of the tribunal’s inquiry. The English Court of Appeal held in Dawkins v Antrobus [1881- 1885] that where a member had been expelled from a club for committing an offence against the club’s Constitution, the member had to be given:

• Proper notice of the meeting;
• An opportunity to attend the meeting;
• An opportunity to be heard; and
• The charges made against him and the proceedings be conducted, bona fide, fairly, and in the honest exercise of the powers given to the meeting by the club.

These conditions having been fulfilled, “the court has no right to consider whether or not what was done by the meeting was right or whether or not what was decided was reasonable.”

It has been suggested that such a jurisdiction depends on contract and the inclusion of the concept of natural justice is an implied term in the contract rather than classified as a judicial review function.

Position in Singapore

In Singapore, the position is similar. It was held in Singapore Amateur Athletics Association v Haron bin Mundir[1993], that:

“ [T]he function of the courts is to see that the rules of natural justice had been observed, and that the decision had been honestly arrived at... It is not the function of the court when exercising such supervisory jurisdiction to resolve issues of fact which are within the proper sphere of the tribunal's inquiry." ”

In addition, the extent of the duty to act fairly will vary greatly from case to case. The Court will uphold the need for observance of the basic norms of fairness in the conduct of disciplinary proceedings to be stricter where:

• The vocational future of a person is at stake; or
• Where there is an express duty to decide only after conducting a hearing or an inquiry; or
• Where the exercise of disciplinary powers may deprive a person of his property rights or impose a penalty on him.

F. Exceptions to the Established Tests

Coat of Arms sign at Parliament House Singapore

Decisions relating to the internal procedures of Parliament

It is clearly established that the courts exercise a self-denying ordinance in relation to interfering with the proceedings of Parliament. The authority for this is Article 9 of the Bill of Rights 1688:

“Freedom of speech –that the Freedom of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court of Place out of Parlyament.”

In addition to Article 9, there is a long line of authorities which precludes any court from impeaching or questioning the freedom of speech and debates or proceedings in Parliament, even if the action is brought, not against, but by a member of the legislature.

Immunity also extends to independent persons appointed by Parliament exercising their duties in relation to the activities of parliament.

Rationale

The court in Prebble held that if any exceptions were made, the member of the legislature would not know whether or not there would subsequently be a challenge to what he is saying. Therefore, the member would not have the confidence to state fully and freely what he has to say.

Exception to the exception

In Prebble, the House of Lords cited the case of Wright and Advertiser Newspapers Limited v Lewis [1990] that an exception should only be granted in the most extreme circumstances. The Supreme Court of Australia held that that where the whole subject matter of the alleged libel relates to the plaintiff’s conduct in the House so that the effect of parliamentary privilege is to exclude virtually all the evidence necessary to justify the libel. If such an action were not allowed to proceed, not only would there be an injustice to the defendant, there would be a real danger that the media would be forced to abstain from the truthful disclosure of a member’s misbehaviour in Parliament which would case a most serious inroad into freedom of speech since justification would be impossible.

Position in Singapore

Article 9 applies in the United Kingdom and throughout the Commonwealth, which Article 9 applies in the United Kingdom and throughout the Commonwealth, which Singapore is a member of. The Parliament (Privileges, Immunities and Powers) Act (Cap 217, 2000 Rev Ed), s 5, applies the same principle to the Parliament of Singapore where it would be a breach of privilege to allow what is said in Parliament to be the subject matter of investigation or submission.

Decisions of the High Court and Court of Appeal

Supreme Court of Singapore

The High Court of Singapore has inherent power to judicially review the decisions of inferior courts and other administrative bodies. Accordingly, one High Court judge may not judicially review a decision of another High Court judge. This power stems from the Supreme Court of Judicature Act (Cap 322) (“SCJA”).

The SCJA does not confer on the Court of Appeal any judicial review powers over the High Court or the Subordinate Courts as s3(b) of the SCJA provides that the Court of Appeal “…shall exercise appellate civil and criminal jurisdiction only.” [emphasis added]

This was applied in Ng Chye Huey v PP [2007] where it was held that the Court of Appeal’s jurisdiction is generally of an appellate nature, and does not possess the jurisdiction and power to entertain applications for the revision or supervision of a decision made by a Subordinate Court as it has “no jurisdiction or power to hear any proceeding other than an appeal against a decision made by the High Court in the exercise of its original jurisdiction.” [emphasis in original]

Issues over which Judicial Review has been ousted by statute

Judicial review may be ousted by statutes where the statutes expressly provide for the exclusion of the court’s power to review the administrative decisions. However, the effect of an ouster clause depends on the individual facts of the case. Examples of statutory ouster clauses in Singapore can be found in the Internal Security Act (Cap 143) and Industrial Relations Act (Cap 136) and may stipulate that any determination is “final and conclusive” or “shall not be subject to any Quashing Order, Prohibiting Order, Mandatory Order or injunction in any court on any account” as in the case of the latter.

G. Decisions without legal effect

It has been held in Singapore that decisions by a public authority without any legal effect are not amenable to judicial review. In Tan Eng Chye v Director of Prisons [2004], a case concerning an application for an order of certiorari to quash the certification of a prison medical officer, the court held that not every act or conduct of a public servant is justiciable by way of a judicial review. The High Court agreed with Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985], that:

“ For a decision to be susceptible to judicial review the decision-maker must be empowered by public law (and not merely, as in arbitration, by agreement between private parties) to make decisions that, if validly made, will lead to administrative action or abstention from action by an authority endowed by law with executive powers, which have one or other of the consequences, mentioned in the preceding paragraph. ”

In addition, the decision must have consequences which affect some person (or body persons) other than the decision-maker, although it may affect him too.

“ It must affect such other person either:

(a) by altering rights or obligations of that person which are enforceable by or against him in private law; or (b) by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do so until there has been communicated to him some rational grounds for withdrawing it on which he had been given an opportunity to comment; or (ii) he has received assurance from the decision-maker will not be withdrawn.

”

The High Court then held that the report made by the prison medical officer was obviously a decision but that alone did not make him a “decision-maker” in the sense explained by Lord Diplock. This was because the officer’s report that the appellant was fit for caning did not have legal effect – the district court judge was duty bound to impose the sentence of caning irrespective of what the officer might have said in his report. Hence, it was not a case for judicial review at all. The court also went further to illustrate more examples of non-decision making conduct, such as the acts of police officers in arresting a person suspected of committing an offence. This approach was again adopted in the more recent case of Comptroller of Income Tax v ACC [2010] The Court of Appeal held that it is trite law that a quashing order will not lie unless a public authority has done something that a court can quash or, in other words, deprive of legal effect. Additionally, the Court of Appeal endorsed the approach in Ainsworth v Criminal Justice Commission [1992], observing that “a decision need not in itself have a direct legal effect or consequence before it can be quashed. A decision which operates as a prerequisite to or a step in a process capable of altering rights, interests or liabilities may also be the subject of a quashing order.” The court eventually concluded that,

“ [A] quashing order will only lie against decisions which have some form of actual or ostensible legal effect, whether direct or indirect. A mere opinion clearly does not fall within this category. ”

At present, the approach in Singapore to decisions without legal effect appears to be less liberal than that in the United Kingdom; it has been said that the English courts “now take a broad view and it is no longer necessary for a claimant to demonstrate that a decision or action has direct legal consequences upon the claimant.” For instance, British courts have taken a considerably wide interpretation of the rule, expanding the scope of matters that falls within the remit of judicial review challenges to encompass even press releases and policy guidance issued by public authorities. This is illustrated in the case of R (Axon) v Secretary of State for Health , in which guidance issued by the Department of Health (“2004 Guidelines”), alleged to be unlawful and in contravention of Art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, was amenable to judicial review. Such a case may be explainable on the basis that the action in question has some indirect legal effect but it remains to be seen if Singapore will adopt such a broad approach.

Academic Opinions and Law Reforms

Prospect of Codification

There have been opinions proposing that a statutory procedure for judicial review be developed. However, looking to Australia’s experience, the success of codification is questionable. Unlike Singapore, Australia has a statutory procedure for judicial review – the Administrative Decisions (Judicial Review) Act 1977 (Cth) in which application procedures are simplified, grounds of review for judicial review codified and specific new rights introduced.

Whilst codification of the grounds of review did ensure clarity and certainty of the law, one glaring limitation was the exclusion of the possibility of judicial development of additional grounds since a code limits a court’s ability to change the law to adapt to circumstances. Kirby J, in Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] had expressed concern about the ‘codification’ of the grounds of review – as to whether the ADJR Act had “arrested” the development of the common law doctrine. This inhibiting effect could be overcome by an open-ended ground enabling review of decisions that were ‘otherwise contrary to law’ but even the effect of this has yet to be observed in Australia. Conversely, the open-ended grounds (“contrary to law” and “constitutes abuse of the power”) in Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5 and Administrative Decisions (Judicial Review) Act 1977 (Cth) s 6 have been described as being so underused, they can fairly be “dead letter”.

The danger of codification lies in the uncertainty of interpretation of the statute in question. In relation to Australia’s ADJR Act, one line of criticism concerned the fear of overreach in scope of legislation based on the Act whereas others criticized the restrictive interpretative approach by the Australian courts. For instance, cases such as NEAT Domestic Trading Pty Ltd v AWB (“NEAT”) have been criticized for diminishing the reach of the ADJR Act along with public accountability.

Public-Private Divide

Even with the “source of power” and “nature of power” tests, there has still been much debate as to whether a public-private divide is even necessary. It is contended that such a division has “turned the law in the wrong direction, away from the flexibility of procedure and towards the rigidity reminiscent of the bad old days…”

A more desirable alternative presents itself in Northern Ireland, where the test for amenability to review is dependent on the ‘public interest’ in the issue. Thus, the public-private divide does not function at the expense of the legitimate interests of individuals.

References

Cases

• Ainsworth v Criminal Justice Commission [1992] HCA 10, 1992 175 C.L.R. 564, High Court of Australia
• Comptroller of Income Tax v ACC [2010] 2 S.L.R. 1189
• Council of Civil Service Unions v. Minister for the Civil Service [1983] UKHL 6, [1985] AC 374, House of Lords (UK)
• Dawkins v Antrobus [1881-1885] All E.R. Rep, Court of Appeal (England & Wales)
• Maclean v. The Workers’ Union [1929] 1 Ch. 602 at 602, Chancery Division
• Ng Chye Huey v. PP [2007] SGCA 3, [2007] 2 S.L.R.(R.) 106, Court of Appeal (Singapore)
• Public Service Commission v Lai Swee Lin Linda [2001] 1 SLR 644
• R (Datafin plc) v Panel for Takeovers and Mergers [1987] QB 815 at 847
• Re Minister for Immigration and Multicultural Affairs [2003] HCA 30, 2003 198 A.L.R. 59, High Court of Australia
• R v. Parliamentary Commissioner for Standards, ex parte Al-Fayed [1997] EWCA Civ 6 at para. 2488, [1998] W.L.R. 669, [1997] EWCA Civ 2488, Court of Appeal (England and Wales)
• R (Axon) v. Secretary of State for Health [2006] Q.B. 539, High Court (England & Wales)
• Singapore Amateur Athletics Association v. Haron bin Mundir [1993] 3 S.L.R.(R.) 407
• Tan Eng Chye v. Director of Prisons [2004] S.L.R.(R.) 521
• UDL Marine (Singapore) Pte Ltd v. Jurong Town Corporation [2011] SGHC 45
• Yeap Wai Kong v Singapore Exchange Securities Trading Ltd [2012] SGHC 103

Other Works

• Leyland, Peter; Anthony, Gordon (2009), "Introduction to Judicial Review", Textbook on Administrative Law (6th ed.), Oxford; New York, N.Y.: Oxford University Press, pp. 205–236, ISBN 978-0-19-921776-2 (pbk.) {{citation}}: Check |isbn= value: invalid character (help)

Further Readings

Articles

• Cassimatis, Anthony E (2010), "Judicial Attitudes to Judicial Review: A Comparative Examination of justifications offered for restricting the scope of judicial review in Australia, Canada and England", Melbourne University Law Review: 1
• Groves, Matthew (2010), "Should We Follow the Gospel of the Administrative Decisions (Judicial Review) Act 1977 (CTH)", Melbourne University Law Review: 736