Fettering of discretion in Singapore administrative law

An applicant may challenge a decision by an authority on the basis that it has either rigidly adhered to a policy it has formulated, or has wrongfully delegated the exercise of its statutory powers to another body.

Neither will it necessarily be considered to have fettered its discretion by adhering to such policies, as long as it approaches decisions with an open mind and is willing to give genuine consideration to each case at hand.

It has been noted that by endorsing its application in this manner, the High Court has given legal effect to informal rules or policies, which therefore amount to "soft law".

In the context of Westminster systems of government, all legal power conferred on the executive by legislation is "inevitably discretionary to a greater or lesser extent".

One exception is that although a contractual fetter on discretion has been established in English law to be a separate ground of review, this has yet to be recognized by the Singapore courts.

[9] Public authorities given discretion under statute to make certain decisions often adopt non-statutory policies to guide them in their exercise of such discretionary powers.

[10] In Lines International, Justice Judith Prakash noted that were it the case that statutory bodies could not formulate policies or guidelines except through duly promulgated regulations, "then everything would come to a grinding halt while policy decisions had to be communicated to the Attorney-General's Chambers, then drafted into regulations and then the drafts approved by the organisation concerned before being sent on to Parliament and effected by gazette notification.

"[11] The principle of not fettering one's discretion "directs attention to the attitude of the decision-maker, preventing him from rigidly excluding the possibility of any exception to that rule or policy in a deserving case".

The latter relates to a separate ground of judicial review, namely, procedural impropriety, and particularly the audi alteram partem ("hear the other side") principle.

"[18] This position was further buttressed in Re Findlay (1984),[19] where four prisoners contended that the Home Secretary's new policy of refusing parole in all but exceptional cases was a fetter upon his discretion.

[6] Such soft law "may be understood as a descriptive umbrella for non-binding instruments containing recommendations or hortatory, programmatic statements, taking the form of informal rules like circulars, self-regulating codes of conduct or government white papers.

"[26] It has been commented that the High Court's formulation of the Lines International conditions has given legal effect to informal rules or policies issued by public authorities.

[27] The Lines International conditions were applied by a different High Court judge in the case of Borissik Svetlana v. Urban Redevelopment Authority (2009).

[37] Although the case did not involve judicial review and did not specifically cite Lines International, Justice Woo Bih Li discussed the validity of a general police policy in the context of judicial review, opining that the adoption of a policy "determining that political activities as a class posed a greater threat to public order than commercial activities ... was not in itself offensive for the purposes of administrative law provided that the police do not fetter their discretion and remain prepared to consider the facts of each case".

Furthermore, the fact that the Board had been given absolute power to prohibit films for reasons which might be private or influenced by trade considerations was sufficient to render the condition ultra vires.

[46] Although ministers are entitled to obtain views from other departments or ministries when making decisions, they must consider objections and not disable themselves from exercising their discretion.

[48] The English common law position that a public body cannot fetter its discretion by abdicating its responsibility and powers to another was discussed and adopted in Lines International.

The High Court stated that while the PSA had agreed to take orders from the GSB and STPB on the basis of the invalid condition, whether it had in fact done so was another matter.

Expressing the view of the Court, Chief Justice Chan Sek Keong held that the Lines International conditions "although correct in law, [were] inapplicable to the factual context of the appeal".

First, it found that the Registrar had made the decision in the lawful exercise of her power and for practical reasons, which included the Customs' reliability in assessing the OMV of vehicles.

Secondly, while Lines International involved a determination of whether a vessel should be given berthing space, the PSA had to exercise its judgment as to how to weigh up various relevant factors.

The Court held that the calculation of the ARF was simply an arithmetical exercise of applying the percentage stated in subsidiary legislation to the Customs' OMVs, and hence did not involve the taking of instructions by the Registrar from another statutory agency.

[54] While the Court found that there was a suggestion that the Registrar could only decide whether to reconsider the ARF imposed on cars if she received Customs' further advice, she nevertheless had not abdicated her power as she could determine the value of vehicles, "after making such enquiries, if any, as [she] thinks fit".

The delegation must be approved by the President (acting on Cabinet's advice);[59] may be made subject to conditions, exceptions and qualifications; and must be published in the Government Gazette.

[63] Thus, in reality, there is no such principle as delegatus non potest delegare; the maxim plays no real part in the decision of cases but is sometimes used as a convenient label.

[67] Ultimately, the courts must decide the issue based on what Parliament has authorized according to what may be summarized as the language, scope and objects of the empowering statute.