A New Trend of Historical Analysis before the Singapore Court of Appeal
This article was inspired by the author’s attendance, as an interested observer, at three separate hearings that took place during the first week in which the Court of Appeal sat for this new legal year. At these hearings, the author noticed that there was a tendency of the Court of Appeal to find history relevant and helpful in determining what the present legal position is or ought to be. This article addresses this trend, if there be one, and its implications for counsel who appear or intend to appear before the Court of Appeal.1
At the outset, and in order to be precise, it should be noted that one of the cases discussed herein was heard before the court of Three Judges of the Supreme Court (the “Court of Three Judges”), and not the Court of Appeal. However, for the purposes of this article, and also as a matter of practice, both Courts are treated the same in the sense that they are typically comprised of the same Judges.2
The Cases
1. 14 January 2013, Monday
CA 97 / 2012: Vellama d/o Marie Muthu v Attorney-General
This case is popularly known and referred to as the “Hougang by-election case”. Because of the context in which it arose, the Hougang by-election case had captured the attention of many Singaporeans and had quickly become a hot-button topic of 2012. Madam Vellama d/o Marie Muthu, the applicant, initiated the case in March 2012, after former Hougang Member of Parliament, Yaw Shin Leong vacated his post following his expulsion from the Workers’ Party. The applicant attempted to get the High Court to declare that the Prime Minister does not have “unfettered discretion” in deciding whether and when to call a by-election. Philip Pillai J dismissed her application: see Vellama d/o Marie Muthu v Attorney-General[2012] 4 SLR 698. Dissatisfied, the applicant brought an appeal to the Court of Appeal.
The case would be familiar to the reader and indeed wide sections of the public given the political context in which it arose. Leaving aside populist sentiment about the case, however, there is amongst other issues, a question of serious constitutional importance that was before the High Court, and which is presently before the Court of Appeal: Does the expression “shall be filled by election” in Art 49(1) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (the “Constitution”) mean that the Prime Minister must advise the President to issue a Writ of Election to fill the vacancy of an elected Member of Parliament; and if so, when must the Writ of Election be issued?
In arriving at his decision, Pillai J traced the constitutional source of Art 49(1) of the Constitution by analysing each and every successive constitutional instrument that led to its current form. His Honour concluded that this “historical narrative” that traced the origins of the expression “shall be filled by election” in Art 49(1), placed “it beyond doubt that it means a process and not an event” (at [83]).
On appeal, the Court of Appeal raised several queries regarding the legislative history surrounding Art 49 of the Constitution. In particular, the Court zeroed in on a specific time period, namely, 1963 to 1965 where Singapore had joined Malaysia (in 1963) and then subsequently separated from her (1965). This was also the time period when certain changes had been effected to the Constitution. The Court of Appeal stated that although the Judge below had delved in some detail into the legislative history of Art 49(1) of the Constitution, it had become aware of some additional materials (over and above the relevant Parliamentary debates) that could further assist the historical analysisof that provision. Both counsel for Madam Vellama and the Attorney-General were, therefore, asked to make further submissions on those materials, which had only been discussed briefly (by the Judge below and in counsel’s written submissions before the Court of Appeal).
Given that the issue in this case turned on the proper interpretation of a statutory provision – to be sure, a Constitutional provision – it was in the least unsurprising that a look back into the past formed a subject of sharp focus before the Court of Appeal. In fact, one could safely assume that it would form an integral part of the appeal since the decision of the Court below squarely addressed the legislative history behind Art 49(1) of the Constitution. However, the case that follows will probably form a stark contrast: counsel in this case had probably not expected the Court3to journey back in time, at least not along the lines that the Court took. This raises interesting issues of whether it is appropriate in all circumstances to have recourse to the past to illuminate the present. When one considers the issues raised, it is difficult not to draw some parallels with the ongoing debate, primarily (but by no means exclusively) in the US on the different theories of constitutional interpretation.4Whether these concepts naturally extend to all forms of statutory interpretation,5or even lend themselves to a broader application in the law generally, is a live question.
2. 15 January 2013, Tuesday
OS 780 / 2012: Dr Susan Lim Mey Lee v The Singapore Medical Council
On the day after the Hougang by-election case, the Court of Three Judges was faced with an appeal by Dr Susan Lim against the decision of a disciplinary tribunal constituted under the Medical Registration Act (Cap 174, 2004 Rev Ed) (“MRA”), which had found Dr Lim guilty of charging in excess of what she was entitled to charge for her services rendered.
One of the arguments made on appeal by counsel for Dr Lim was that there should not be any ethical limit imposed on the amount of fees that a doctor can charge his/her patient. In addressing the issue of an ethical limit, the Court of Three Judges raised a point which had caught its attention but for which neither counsel had focussed their submissions on: the historical basison which doctors, or physicians, charged fees.
The Court found such history relevant in the sense that the MRA, traced back to its own progenitor in 1905, had been modelled on a piece of equivalent English legislation. The Court had learnt through its independent research into the issue that during the 17th and 18th centuries in England, physicians were not allowed to sue for fees. However, the position changed in 1958, when the relevant English statute was amended to allow doctors or physicians to sue for fees. The Court was, therefore, keen and interested to consider whether the Courts (or regulators) of that era, and the doctors plying their trade in this social context, commonly accepted that there were applicable limits on the amount of fees they could charge their patients. The Court further noted that there was a considerable amount of legal literature on this point.
It was apparent that both counsel had not thought it necessary in the context of the case, viz, disciplinary proceedings against a medical professional on an ethical question of fee-charging and any limits thereon, to stretch their analysis to include historical datum. It should be highlighted that, at least on the face of the issues before the Court, such historical datum was not at any rate the subject of dispute between the parties. In this context, it was entirely understandable that counsel had not focussed their attention on this issue. Yet, one could also see how such an angle was relevant and potentially helpful in the Court’s final analysis.
While we keenly await the Court’s decision and we do not know what weight, if any, the Court will ultimately place on the historical analysis, it is perhaps noteworthy that once a statute or statutory provision is engaged – even if only in a tangential manner – it would, I think be a fair suggestion that counsel should be prepared to tackle the Court of Appeal’s apparent interest in looking into the past.
3. 16 January 2013, Wednesday
CA 62 / 2012: Re Zero Geraldo Mario Nalpon
This was an interesting case which involved a novel point. Briefly, the appellant had made an application (videOriginating Summons No 77 of 2012) under s 82A(5) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (the “LPA”) for leave for an investigation to be made into the appellant’s complaint of misconduct against a Legal Service Officer. Former Chief Justice Chan Sek Keong heard and dismissed the application. The appellant appealed to the Court of Appeal against Chan CJ’s decision.
As a preliminary issue, the question posed – and for which an amicus curiae, Asst Prof Goh Yihan of the National University of Singapore, was appointed by the Court to provide assistance on – was whether the Court of Appeal has the jurisdiction to hear the appeal against Chan CJ’s decision. Prof Goh submitted that the answer is in the negative, ie that the Court does not have the jurisdiction to hear the appeal against Chan CJ’s decision. The Court accepted these submissions and held that it had no jurisdiction.
In Prof Goh’s view, which was almost entirely accepted by the Court, there were two reasons why the Court of Appeal did not have the jurisdiction to hear the appeal. First, the Court did not have any statutorily conferred jurisdiction that would allow it to hear the appeal. Second, this was not an appropriate case for the Court to invoke its inherent jurisdiction even if it had such inherent jurisdiction to hear the appeal. According to Prof Goh, in relation to the first point, there were two prerequisites under the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) that were not satisfied in this case, namely that: (i) the Court whose decision was being appealed against must be the High Court; and (ii) the High Court must have exercised its original/appellate civil jurisdiction or its original criminal jurisdiction.
A section of Prof Goh’s submissions was dedicated to explaining why disciplinary proceedings under the LPA did not come under the usual Court system. To this end, Prof Goh examined the historical lineage of the relevant legislation, finding that it revealed a clear demarcation between the civil/criminal and disciplinary jurisdiction of the Courts. Indeed, Prof Goh’s analysis took him as far back as the Straits Settlements Supreme Court Act of 1867. In doing so, it would be remiss of this author not to point out that Prof Goh was in good company (and proceeding on the basis of strong authority): In its earlier decision of Law Society of Singapore v Top Ten Entertainment Pte Ltd[2011] 2 SLR 1279, the Court of Appeal had itself gone back in time in its analysis of the disciplinary process under the LPA, reaching as far back as the Courts Ordinance of 1878.
In addition, given that a specific provision of the LPA was at issue in the case, viz, s 82A of the LPA which sets up the disciplinary process applicable to Legal Service Officers, it was again unsurprising that Prof Goh also addressed the legislative history behind the enactment of s 82A of the LPA. This was nothing more than another part of Prof Goh’s extremely thorough and detailed analysis.
Even though the Court of Appeal’s decision did not ultimately hinge on Prof Goh’s historical analysis, the Court nevertheless made it a point to note, and in the process highly commend, that Prof Goh had painstakingly devoted a large amount of time and effort on, inter alia, his analysis on the relevant history.
Observations
What, then, to make of the approach seemingly favoured and adopted by the Court? There are three key takeaways. First, the foregoing discussion has hopefully demonstrated that the Court of Appeal (and the Court of Three Judges) remains ever keen to examine the historical origins, lineage and context of any piece of legislation, if it be at all relevant (even if tangentially, it is respectfully suggested) to the dispute before the Court.
Second, the substantive areas of law that these cases traverse are very broad, and indeed, are widely varied. From the most obvious context of constitutional interpretation to a far less clear subject matter that is medical ethics, with the disciplinary process for lawyers sandwiched in between, the Court has demonstrated that a look back into the past is often required. Whether the current law or legal position ought necessarily (and in all substantive areas) be assessed or determined by reference to the past is perhaps a question better left to the academics amongst our midst.
Third, for those who actively practise law in the Singapore Courts, and especially those who appear or intend to appear before the Court of Appeal, however, the writing on the wall is clear: Counsel not prepared in addressing relevantlegal history do themselves no favours. As the Court of Appeal looks ready to embark on journeys into relevant legal history, it is expected of counsel before the Court that they be ready to guide and assist the Court in such journeys.
► Douglas Chi*
Appeals and Issues Practice Group
Rajah & Tann LLP
E-mail: [email protected]
*MA, BA (Law) (Cantab.) (First Class Hons.); LLM (Columbia)
Rajah & Tann offers the expertise and experience of the only group of advocates dedicated to the practice of appellate advocacy before the Supreme Court of Singapore.
Notes
1 At the time of writing, two out of the three cases discussed herein are still awaiting a decision of the Court. This article, therefore, does not purport to howsoever comment on the substance or the merits of those cases.
2 See for example Law Society of Singapore v Top Ten Entertainment Pte Ltd[2011] 2 SLR 1279: “Currently, the practice of the Supreme Court is for applications under s 98(1) [of the Legal Profession Act] to be heard by a court of 3 Judges of Appeal” (at [63]).
3 This was a sitting of the Court of Three Judges and not the Court of Appeal.
4 See for example Robert C Post, “Theories of Constitutional Interpretation” (1990) Faculty Scholarship Series, Paper 209; available at: http://digitalcommons.law.yale.edu/fss_papers/209 (last accessed, 23 April 2013).
5 For a comprehensive account of statutory interpretation in Singapore, see Goh Yihan, “A Comparative Account of Statutory Interpretation in Singapore” (2008) 29 Statute Law Review 195-223; Goh Yihan, “Statutory Interpretation in Singapore: 15 Years on from Legislative Reform” (2009) 21 Singapore Academy of Law Journal 97-134.