Procedural impropriety in Singapore administrative law is one of the three broad categories of judicial review, the other two being illegality and irrationality. A public authority commits procedural impropriety if it fails to properly observe either statutory procedural requirements, or common law rules of natural justice and fairness.
The common law rules of natural justice consist of two pillars: impartiality (the rule against bias, or nemo judex in causa sua – "no one should be a judge in his own cause") and fair hearing (the right to be heard, or audi alteram partem – "hear the other side"). The rule against bias divides bias into three categories: actual bias, imputed bias and apparent bias. There are currently two formulations of the test for apparent bias, known as the "real likelihood of bias" test and the "reasonable suspicion of bias" test. Some controversy exists as to whether there is in fact any material difference in the two formulations.
Fair hearings must include sufficient notice to prepare a case, prior knowledge and opportunities to contest, contradict or correct any evidence that will be introduced in the case, and the ability to raise relevant matters before the court. In addition, a fair hearing may also include the rights to legal representation, to cross-examine witnesses, and to be given reasons for a decision; and a presumption in favour of an oral hearing.
The concept of law in provisions of the Constitution of the Republic of Singapore such as Article 9(1) and Article 12(1) includes what are called "fundamental rules of natural justice". According to the Court of Appeal, the content of fundamental rules of natural justice is the same as the common law rules of natural justice, but there is a qualitative difference in how the rules apply. A breach of the former can lead to legislation being struck down on the ground of unconstitutionality. On the other hand, a breach of the latter has the effect of invalidating administrative decisions but cannot affect the validity of legislation.
More recent case law from the UK tends to refer to a duty of public authorities to act fairly rather than to natural justice. One aspect of such a duty is the obligation on authorities in some cases to give effect to procedural legitimate expectations. These are underpinned by the notion that a party that is or will be affected by a decision can expect that he or she will be consulted by the decision-maker before the decision is taken.
Procedural impropriety The term procedural impropriety was used by Lord Diplock in the House of Lords decision Council of Civil Service Unions v. Minister for the Civil Service ("the GCHQ case", 1984). to explain that a public authority could be acting ultra vires (that is, beyond the power given to it by statute) if it commits a serious procedural error. His Lordship regarded procedural impropriety as one of three broad categories of judicial review, the other two being illegality and irrationality.GCHQ case, p. 410. Procedural impropriety generally encompasses two things: procedural ultra vires, where administrative decisions are challenged because a decision-maker has overlooked or failed to properly observe statutory procedural requirements; and common law rules of natural justice and fairness.. United Kingdom administrative law has played a significant role in helping to shape Singapore law in this area, given the weight accorded to UK cases by the courts in Singapore.
Lord Diplock noted in the GCHQ case that "failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice", is a form of procedural impropriety.GCHQ case, p. 411. An example was provided by the Court of Appeal of Singapore in Yong Vui Kong v. Attorney-General (2011).. The Court said if there was conclusive evidence that the Cabinet had not complied with the procedure set out in Article 22P(2) of the Constitution of the Republic of Singapore. for determining if the President should grant a pardon to a person sentenced to death – for example, if it had not met to consider the issue, or had tossed a coin to decide – this was a breach of law that the courts could intervene to correct.Yong Vui Kong, pp. 1234–1235, paras. 81–83.
The common law rules of natural justice consist of two pillars: impartiality (the rule against bias, or nemo judex in causa sua – "no one should be a judge in his own cause") and fair hearing (the right to be heard, or audi alteram partem – "hear the other side").Leyland & Anthony, p. 342. The rule against bias divides bias into three categories: actual bias, imputed bias and apparent bias. More recent case law from the UK tends to refer to a duty of public authorities to act fairly rather than to natural justice. One aspect of such a duty is the obligation on authorities in some cases to give effect to procedural legitimate expectations. These are underpinned by the notion that a party that is or will be affected by a decision can expect that he or she will be consulted by the decision-maker before the decision is taken.Leyland & Anthony, "Legitimate Expectations", pp. 313–330 at p. 313.
Natural justice and the duty to act fairly The rules of natural justice are a set of uncodified common law rules offering procedural safeguards to ensure that decision-makers act according to basic standards of fairness. These rules function to protect both citizens and public officials by restricting the freedom of administrative action and by facilitating better decision-making. The precise requirements of these rules vary according to the context of the case.
The modern development of the principles of natural justice began with the case of Ridge v. Baldwin (1963). in which Lord Reid rejected the artificial distinction established in a line of cases which held that a court could only judicially review decisions that were judicial or quasi-judicial in nature, but not those that were "administrative". Instead, he held that the role of the courts was to assess what a reasonable person would regard as fair procedure in any given circumstances. Following this case, the development of natural justice principles led to a "sliding scale of fairness",Leyland & Anthony, pp. 349–353. with the degree of fairness required varying with the context and circumstances of each case. In Lloyd v. McMahon (1987),. Lord Bridge of Harwich outlined some considerations to take into account, including the character of the decision-making body, the kind of decision it has to make, and the statutory or other framework in which it operates. Most importantly, it has to be considered whether the fundamental human rights of an individual will be affected. Where such rights are affected, the common law will require more procedural protection.R. v. Army Board of the Defence Council, ex parte Anderson Q.B. 169, High Court (Divisional Court) (England and Wales).
However, there are circumstances where the courts accept that procedural protections should be more limited or even placed in abeyance, and this is a function of context. This is especially so in matters of national security where the sensitivity of such matters demands that the courts do not look closely at government decisions to limit procedural rights.Leyland & Anthony, p. 356. In wartime, the case of Liversidge v. Anderson (1941). is regarded to be of great constitutional significance. The House of Lords found that there could be no inquiry into whether there were reasonable grounds for the detention of the appellant as it was a subjective matter for the Home Security to determine, as prescribed by legislation. However, in Lord Atkin's acclaimed dissenting judgment, he refused to endorse this construction of the law. Lord Atkin's judgment is now taken as the correct decision, where every imprisonment is prima facie illegal until justified by the arresting authority. Nonetheless, national security is still an important issue that can and does limit procedural protection in certain cases.
The rule against bias
The common law rule against bias is normally taken to be of stricter application than the right to a fair hearing.Leyland & Anthony, p. 378. It is based on the requirement that for any decision-making process, "it is not merely of some importance, but of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done".R. v. Sussex Justices, ex parte McCarthy 1 K.B. 256, H.C. (Div. Ct.) (England and Wales). There are three established categories of bias – actual, imputed and apparent bias. The categories of imputed and apparent bias are not exclusive to each other and may overlap in practice.
Actual bias Actual bias is the influence of partiality and prejudice in decision-making, and actual prejudice against or in favour of a party. It must be proved on a balance of probabilities. However, it is understandably difficult to obtain evidence of actual bias. In any case, the common law protects litigants who can discharge the lesser burden of showing a real danger of bias without requiring them to show that such bias actually exists..
In the case of Chee Siok Chin v. Attorney-General (2006), the High Court judge was asked to recuse herself on the grounds of actual bias, due to the fact that during a chambers hearing there had been a short outburst between the counsel for the plaintiffs and the defendants, after which the plaintiffs' counsel had been directed to continue with his submissions. The judge held there was no actual bias whatsoever justifying the recusal application. She further held that judges have to be careful not to accede too readily to suggestions of actual bias by litigants who do not want particular judges to hear their cases, as this would encourage parties to believe that by seeking the disqualification of judges they would have their cases tried by other judges thought more likely to decide the cases in their favour. The "insidious nature" of judge-shopping should not be condoned as it "undermine[s] and weaken[s] the administration of justice".Chee Siok Chin, p. 548, para. 12.
Imputed bias Arising from a pecuniary interest Adjudicator with a pecuniary or monetary interest in the matter, no matter how small it is, are automatically disqualified from making the decision. The decision, if made, may be set aside.Leyland & Anthony, p. 379. Thus, in Dimes v. Grand Junction Canal Proprietors (1852),. the House of Lords held that the Lord Chancellor, who was a shareholder of one of the companies that was a party to certain legal proceedings he was presiding over, was disqualified from hearing the case. His ruling had to be annulled. This was not because there was a real possibility of bias, but because the situation created a possibility that a reasonable person might suspect the existence of bias, which would taint the fairness of the proceedings.Dimes, pp. 721–722, paras. 23–26.
However, there are clear exceptions to this rule, such as the following:
Proceedings may continue if the parties are made aware of the adjudicator's interest in them and agree to waive their objections. Where there is some special statutory dispensation on the matter. All the available adjudicators are affected by the same disqualifying interest and there is no option other than to proceed.See the "Exception to the rule against bias: rule of necessity" section below. If the financial interest is very remote and no suspicion of bias could occur to a reasonable person, the decision-maker will not be disqualified.
Arising from a non-pecuniary interest