Law Minister Shanmugan recently explained in brief how the process for appeal will be like. In all fairness, he tries to make it as simple and speedy as possible, and magnanimously waves court fess for the first 3 days. Before we bow low in gratitude for his graciousness, the reality is that the right to appeal is our inalienable right under doctrines of natural justice. He needs to craft that into the POFMA legislation, whether he likes it or not. The fact that this process was not addressed in POFMA itself seems to suggest it was an afterthought. In other words, just an obligation and not accommodation out of brotherly love. It is but a veneer to protect people's right to appeal. The fact is, success in such an action by an applicant is almost impossible on economics and judicial grounds, which I shall explain.
The process for appeal as disclosed by Shanmugaran is by way of simple form filing. It seems that it's something the ordinary guy can attend to personally. This is, however, nothing like going to HDB to appeal against a traffic summon. The applicant that tries to save cost and do a self-representation will get his head chopped off for the High Court suffers no fools. If he thinks he can shop around for the cheapest lawyer in town, he might as well throw in the towel and save his money. The case is likely to deal with constitutional and administrative law issues which lawyers lacking specialty knowledge are'nt good choices, all due respects to these. Shanmugaran and the Minister of State for Law Mr Edwin Tong, both may recommend you try Allen Gledhill, the firm where they were partners before. This is one of the best law practice in town in these specialty fields, a government favourite, and stratospheric fees.
The case before the High Court will call for either a judiciary review or supervisory review under their appellate jurisdiction. There is a world of difference between the two.
In a judiciary review the High Court looks into the constitutionality of laws enacted by parliament and administrative acts of the government. Singapore has constitutionality supremacy, which means any laws or public authority regulations must observe the provisions of the Constitution. Article 93 of the Constitution vests the powers in the judiciary to abrogate any laws or administrative acts which exceed the limits of the power conferred. This is a check and balance function to ensure the acts of the legislative and executive are reviewed by the judiciary.
Appellate jurisdiction is basically a supervisory function where the High Court reviews the work of a lower court or other tribunals. This power is derived from statutory framework. So Shanmugaran is in the process of crafting the legislation for appeals under POFMA. Under this mandate, the High Court looks only at the facts of the case and whether the relevant laws have been applied correctly.
If you wish to apply for recourse to the courts, there are only 3 grounds for your claim:
- Illegality (errors of law or facts, abuse of powers)
- Irrationality
- Procedural impropriety
When it is a case of balancing between individual or constitutional rights versus public interests, the High Court is called upon to do what is called a proportionality analysis. Judiciaries the world over take either an adversarial or conservative constructive approach. The ideology preferred depends on whether one is a red or green light theorist.
What is the position of the High Court in Singapore when it is called upon to do this? A few precedent cases have established beyond a doubt that Singapore judiciary is conservative in their approach towards administrative law. In fact, Chief Justice Chan Sek Keong, in an ex-curial (out of court) speech in 2010 had specifically expressed a preference for the ‘green-light’ approach towards administrative law. This approach translates to a reluctance by the judiciary to do proportionality analysis.
Case of Jeyaretnam Kenneth Andrew v Attorney-General 2012:
In 2012, 25 IMF member countries committed a total of US$340B contingent loan line to safeguard global economic and financial stability till 2020. Singapore's share is US$4B. Jeyaretnam applied for judicial review on the ground that Article 144 of the Constitution, properly interpreted, required the loan to be approved by Parliament and the President. There was no constitutional approval as it was merely a central bank commitment. The Court of Appeals dismissed the case on grounds the appellant had no locus standi - Latin term for 'no standing ground'. The CA basically endorsed CJ Chan's green light preference and explained "public administration is not principally about stopping bad administrative practices but encouraging good ones: in other words, seek good government through the political process and a liberal standing test would allow ‘too many unmeritorious cases to be fought, which could seriously curtail the efficiency of the Executive in practising good governance."
Green light theorists tend to see their concern is primarily with the legality, not the merits of a case. The first reason is the courts are in no position to decide on a fact when the power to do so has been assigned to the public body to whom Parliament has entrusted the decision-making power. In the case of POFMA, it's the Ministers. The second reason is that the courts may not have the necessary expertise to assess the factual situation. Eg if a Minister says reporting the Joo Koon MRT collision jeopardises state security, there is no way for the court to assess what is state security.
For these reasons, recourse to the courts on grounds of illegality is not the first line of defence against administrative abuses of powers. It is a fallacy.
Irrationality was expounded in the English case of Associated Provincial Picture Houses v. Wednesbury Corporation (1947) It established irrationality in 2 ways :
1. Where a public authority does things such as not directing itself properly in law by considering matters which it is not bound to consider and taking into consideration irrelevant matters.
2. When a public authority does something that is "so absurd that no sensible person could ever dream that it lay within the powers of the authority. This has came to be known as Wednesbury unreasonableness.
Singapore courts have applied Wednesbury unreasonableness as the test for irrationality, One matter that comes to mind is the Public Order Act where one person alone can constitute an illegal assembly. To my mind, if this is not utter madness it is definitely Wednesbury unreasonableness.
However, the courts are very careful not to supplant their opinions over those of decision makers. In this, they will adopt two levels of intensity of scrutiny -- a light touch or an anxious scrutiny in favour of the public authority. So if someone is charged under POFMA for posting an article about a train collision at Joo Koon station on the grounds of causing a danger to public safety, the High Court may well may well conclude that the judicial process was unsuitable for reaching decisions made on such grounds, and that therefore it was "in no position to hold that it has been established that the Minister's exercise of discretion was irrational in the Wednesbury sense", That is light touch, in other words, the odds are stacked against you as appellant. There do not seem to have a precedent case where the anxious touch has been applied.
Procedural impropriety arises under 2 situations :
(1) nemo judex in causa sua "no-one should be a judge in his own case" which I wrote about in a previous blog ownself judge ownself. (2) where there has been bias, - actual, imputed and apparent bias. If you were not given a chance to be heard, or if the hearing was not conducted in a fair manner, or there was undue delay, or insufficient notice, then you have a claim to appeal on grounds of bias. Other examples could be where the Minister has pecuniary interest in the matter, directly or indirectly. These are the 2 key pillars of natural justice which all individuals are entitled to.
A Solomonic view:
What are the chances of success for an applicant to appeal a Minister's judgement under POFMA? Applicants' arguments will most likely be of 2 types -- (1) a challenge on facts -- that the glass is half-full, not half-empty; (2) a challenge to a Minister's definition of whatever the state interest that was brought up. To the extent that applicants' claims are predominantly these two types, the advice is best to walk away with tails down, for the odds are stacked so high the avenue of recourse to the courts is but a fallacy.
Coming up next : Are our courts 'pliant'?