FEATURE


An analysis of the recent Court of Appeal decision of Manjit Singh s/o Kirpal Singh and another v Attorney-General [2013] SGCA 22.

Amenability to Judicial Review: the Ambiguity in Manjit Singh v Attorney-General

There is in administrative law, a difficult but fundamental question: when is a decision amenable to judicial review? The beguiling reply that a decision is amenable to judicial review where there is a “public element” serves only to recast the same question in a different form: what counts as a public element? Thereon, the mind is led down paths of fine distinctions that, more often than not, end in confusion. The Court of Appeal’s recent decision of Manjit Singh s/o Kirpal Singh and another v Attorney-General [2013] SGCA 22 (“Manjit Singh”) lays down what appears to be a clear framework of analysing the issue of amenability to judicial review. The promise of an admirably simple starting point for future cases beckons. Yet an ambiguity lurks within. This article identifies that ambiguity and explains why it is important.
 
Manjit Singh v Attorney-General– A Brief Summary
 
The appellants in Manjit Singh were Mr Manjit Singh and Mr Sree Govind Menon (collectively, the “Appellants”). A complaint had been made against them to The Law Society of Singapore. Pursuant to s 90(1) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (the “LPA”), the Chief Justice appointed Mr L P Thean as the chairman of the Disciplinary Tribunal. The Appellants wrote to the Chief Justice objecting to the appointment on the essential ground that Mr L P Thean might be in a position of conflict.1 Subsequently, the Chief Justice, without accepting the truth of the Appellants’ allegations of impartiality, appointed Mr G P Selvam instead to head the Disciplinary Tribunal. The Appellants again wrote in to object to the appointment of Mr G P Selvam on the ground that he might not be fully impartial.2 The Appellants also suggested a list of more than ten Senior Counsel from which the chairman of the Disciplinary Tribunal could be appointed.3
 
This time, the Chief Justice did not accede to their request. After an exchange of correspondence with the Disciplinary Tribunal Secretariat, the Appellants applied for leave to apply to quash the Chief Justice’s decision to appoint Mr G P Selvam.
 
The Appellants’ leave application raised two essential issues:
1.  Whether the Chief Justice’s decision to appoint Mr G P Selvam was amenable to judicial review; and
 
2.  Whether there was sufficient factual merit to grant leave.
 
The first issue was one of law, and the second, one of fact. The Appellants would have to succeed on both issues for leave to be granted. As it was, the Appellants failed on the second issue in the High Court and on appeal. Both Courts held that the Appellants’ allegations of bias or lack of natural justice were factually unsustainable. But the Court of Appeal differed from the High Court on the first issue. The High Court had held that the Chief Justice’s decision was notamenable to judicial review;4 the Court of Appeal disagreed. The rest of this article will focus on the analytical framework that the Court of Appeal applied in arriving at its decision that the Chief Justice’s decision was amenable to judicial review.
 
The Court of Appeal’s Analysis on Amenability to Judicial Review
 
The crux of the Court of Appeal’s reasoning that the Chief Justice’s decision was amenable to judicial review is found at [25]-[33] of the Grounds of Decision. The Chief Justice’s power to appoint the chairman of the Disciplinary Tribunal stems from s 90(1) of the LPA. The Appellants argued that the “source” of the Chief Justice’s decision was statutory and that the exercise of a statutory power was always amenable to judicial review.5 The Attorney-General disagreed and submitted that the source of a power had “never been held to be the sole determinative factor” of whether a power or decision was amenable to judicial review. This was because the Courts would also consider the “nature” of the power.6
 
The Court of Appeal began its analysis by stating the uncontroversial proposition that “[i]n modern administrative law, it is well-established that powers which are not conferred by statute may still be amenable to judicial review”.7 But of course, this proposition was, in the circumstances, neither here nor there since the power exercised by the Chief Justice hadbeen conferred by statute. The Court of Appeal, therefore, went on to crystallise the core issue as: “This appeal concerned the opposite question: whether, in some circumstances, a power conferred by statute may not be amenable to judicial review.”8
 
Having set out clearly the point of engagement, the Court of Appeal then stopped short of accepting the Appellant’s contention that the exercise of a statutory power necessarily meant that it was amenable to judicial review. Instead, the Court held that the exercise of a statutory power would ordinarilybe amenable to judicial review, unless compelling reasons to the contrary existed.9 What would count as a compelling reason to the contrary? It would be a reason that “indicates the absence of such a public element in what is nonetheless a statutory power or duty”.10 The Court of Appeal took the plainly correct view that there would be no judicial review without a public element. It gave the powers conferred by the Companies Act (Cap 50, 2006 Rev Ed) and the Trustees Act (Cap 337, 2005 Rev Ed)11 as two general examples of statutory powers without a public element.
 
The effect of the Court of Appeal’s decision in Manjit Singhis that now every exercise of a statutory power is prima facieamenable to judicial review. It is then up to the Attorney-General to argue that there are compelling reasons not to judicially review the decision. In most cases, this will be through showing a lack of public element justifying judicial review. This clean analytical framework is premised on the sound principle that there is a “public interest in ensuring that statutory powers are exercised lawfully”.12 Good governance and the rule of law demand that the exercise of statutory powers is prima faciesubject to the supervisory jurisdiction of the Courts.13 It follows that, as the Court of Appeal helpfully clarified, a decision may be amenable to judicial review even if the applicant had not suffered harm as a result. This is because judicial review is concerned with the process – whether the decision-maker overstepped the limits of his power – not the actual outcome.14
 
Since the Chief Justice had indisputably exercised a statutory power in appointing Mr G P Selvam, that decision was, on the Court of Appeal’s analysis, prima facieamenable to judicial review. It was then for the Attorney-General to argue that the required public element was lacking. None of the Attorney-General’s other arguments obviously addressed the issue of a lack of public element,15 so the default position prevailed: the Chief Justice’s decision was amenable to judicial review.
 
The Ambiguity
 
The careful reader will have noticed by now that there is an ambiguity in what exactly the Attorney-General must show to displace the prima facieposition that the exercise of a statutory power is amenable to judicial review. At least two interpretations of Manjit Singh are possible: (i) the Attorney-General must show the absenceof apublic element;16 or (ii) the Attorney-General must show the lack of a sufficientpublic element.17 Both interpretations are problematic, and both have practical consequences for the practitioner.
 
Absence of a Public Element
 
The first interpretation of Manjit Singhis that the Attorney-General has to show the absence of any public element. In other words, the Attorney-General has to show that there was no public element involved. Apart from requiring the Attorney-General to essentially “prove” a negative, this interpretation of Manjit Singhwould have far-reaching consequences. In particular, it would seem that henceforth, any exercise by a government ministry or statutory board of a statutory power will necessarilybe amenable to judicial review – the required public element being provided by the character of the decision-maker.
 
Hence it would mean that the Jurong Town Corporation’s (a statutory board) decision to grant a scholarship (being the exercise of a statutory power under s 12(2)(gb) of the Jurong Town Corporation Act (Cap 150, 1998 Rev Ed)) (“JTC Act”) would necessarily be amenable to judicial review. It would also mean that Manjit Singhmay have impliedly18 overruled the High Court decision of UDL Marine (Singapore) Pte Ltd v Jurong Town Corporation [2011] 3 SLR 94 (“UDL Marine”).
 
Briefly, the applicant in UDL Marine (“UDL”) sought judicial review of JTC’s decision not to renew UDL’s lease of certain waterfront industrial premises. One question before the High Court was whether JTC’s decision not to renew the lease was amenable to judicial review. The learned Judge accepted that JTC’s power to lease land was ultimately derived from statute, s 12(2)(d) of the JTC Act.19 But on the facts, her Honour held that the source of JTC’s decision not to renew the lease had instead been the lease contract.20 This was one reason why JTC’s decision was not amenable to judicial review. But one might argue that even if JTC had been exercising its contractual right not to renew the lease, JTC would still have been concurrently exercising its statutory power to lease.21 As JTC is a body created by statute, its powers are necessarily circumscribed by what Parliament has granted. It cannot contract to confer itself powers that it does not have.22
 
How would the present interpretation of Manjit Singh apply to the facts in UDL Marine? Since JTC was exercising a statutory power when it decided not to renew the lease, that decision would prima faciebe amenable to judicial review. JTC is a statutory body discharging the public function of developing industrial land in Singapore.23 Since JTC is clearly a public body, there would exist a public element such that the Attorney-General would not be able to show the absence of any. It follows that JTC’s decision would have been amenable to judicial review. But it is not clear whether the Court in Manjit Singh had intended to overrule UDL Marine as the latter case was not discussed. Neither did the Court of Appeal discuss the aspect on amenability to judicial review in its earlier decision of Public Service Commission v Lai Swee Lin Linda [2001] 1 SLR(R) 133, which also concerned the question of whether the source of a public body’s decision was statutory or contractual. For these reasons, one could ask if the present interpretation reads too much into Manjit Singh.
 
Lack of a Sufficient Public Element
 
The second interpretation of Manjit Singhis that the Attorney-General only has to show the lack of a sufficient public element. In other words, the Attorney-General does not have to show that there is nopublic element; he only has to show that the public element(s) are insufficient or inadequate to justify judicial review. Hence the second interpretation of Manjit Singhis less demanding of the Attorney-General than the first. The difficulty with this interpretation is that it is like trying to nail jelly to a wall:24 the “sufficiency” of a public interest justifying judicial review is likely to depend on a combination of value judgement and facts. Neither does Manjit Singhexplain how a public element may be “sufficient”, or why it was sufficient on the facts of the case.
 
Requiring the Attorney-General to show the lack of a sufficient public element would also in effect shift the enquiry from identifying the source of the power (which would be simple) to identifying the sufficient public interest (which would not). Why bother with the source of the power when the “real fight” is whether there is a sufficient public element? But such an outcome would seem incongruous with the tenor of Manjit Singh, which repeatedly emphasised the importance of keeping the exercise of a statutory power within its legal limits.25
 
Practical Considerations
 
As noted, there are difficulties with the two interpretations of Manjit Singhset out above. These theoretical difficulties may have practical consequences, some of which will now be identified.
 
If the first interpretation is correct – that the Attorney-General has to show nopublic element – the applicant seeking judicial review of a statutory power only has to point to onepublic element to succeed on the point of amenability to judicial review. One expects that this would not be too difficult – a room cannot be empty if there is a ball, however small, in it. One could go further and say that in this case there is no such thing as an empty room: as the Court in Manjit Singhobserved, there will almost invariably be “a public interest in ensuring that statutory powers are exercised lawfully”.26 Hence, there would be a clear strategic advantage for the applicant to seize the initiative and identify the public element from the outset.
 
But if the second interpretation is adopted – that the Attorney-General has to show insufficient public element – it is not so obvious that the applicant should at the outset attempt to identify a “sufficient public element”. Given the uncertainty over what exactly a “sufficient public element” is, and given that Manjit Singhdid not expressly identify where the public element lay in the Chief Justice’s exercise of the
s 90(1) LPA power, there might be some merit in allowing the Attorney-General to, so to speak, go first.
 
It is also noted that on either interpretation, identifying the “publicness” of a particular function may prove controversial in borderline cases. Substituting “public” for “governmental”,27 as some authorities have done, provides only limited clarification. Indeed, the Court of Appeal in Manjit Singhapproved the English Court of Appeal’s dicta that the search for a public element is “very broad, not to say question begging”.28 Significantly, the inquiry into whether there exists “a public element” or “sufficient public element” is often premised on one’s theory of the State – countries draw the line between public and private functions in different places at different times.29 Such political differences between jurisdictions (which are sometimes reflected in domestic legislation) should not be ignored. Practically speaking, this means that there will be cases where counsel will certainly be put through their paces in marshalling the relevant comparative and socio-scientific materials to assist the Court. At a more theoretical level, some may question whether this is an inquiry which is even appropriate for the Courts. There would appear to be no straightforward answers.
 
Conclusion
 
The Court of Appeal’s judgment in Manjit Singhis tantalising, both for what it promises and what it withholds. At first it appears that a plain and clear analytical framework has been provided for future judicial review of statutory powers. But as explained above, things are not quite as simple as they seem. It looks like the project has only just begun.
 

Tham Lijing30
    Tan Rajah & Cheah
    E-mail: thamlijing@trc.com.sg


Calvin Liang31
    Tan Kok Quan Partnership
    E-mail: calvinliang@tkqp.com.sg


Notes

1   [6] of the GD.
2   [9] of the GD.
3   [8(e)] of the GD.
4   The High Court’s decision on this point is summarised at [16(b)] of the Court of Appeal’s GD.
5   [25] of the GD.
6   [25] of the GD.
7   [27] of the GD.
8   [27] of the GD.
9   [28] of the GD.
10  [32] of the GD.
11  [31] of the GD.
12  [60] of the GD.
13  [52] and [55] of the GD.
14  [53] of the GD.
15  The Attorney-General had instead made the two main arguments that: (i) the characterof the decision – ie,that it involved no element of discretion and was hence “ministerial” – rendered it unsuitable for judicial review; and (ii) that judicial review was excluded by s 91A of the LPA. Both arguments were rejected by the Court: see [35] and [58].
16  [32] of the GD.
17  Supported by the quote at [32] of the GD from Regina (Beer (trading as Hammer Trout Farm)) v Hampshire Farmers’ Markets Ltd [2004] 1 WLR 233, which refers to “whether the decision has a sufficient pubic element, flavour or character to bring it within the purview of public law”.
(emphasis added)
18  Because the case was not discussed in Manjit Singh.
19  [54] and [55] of the judgment.
20  [56] of the judgment.
21  The statutory power to lease would include the power not to lease: s 27(3) of the Interpretation Act (Cap 1, 2002 Rev Ed).
22  See Padfield v Minister of Agriculture Fisheries and Food[1968] AC 997.
23  At [54] of the judgment.
24  To borrow a simile from The Economist.
25  Ibid, note 9.
26  [60] of the GD.
27  See R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan[1993] 1 WLR 909at 923.
28  [32] of the GD.
29  See Aga Khanat 932 where Hoffman LJ made reference to the fact that horseracing in Tasmania is regulated by a statutory body. One might argue that eg cricket in Sri Lanka comes close to being a public interest.
30  BA (Oxon), BCL.
31  LLB (LSE), BCL.