Magnus, Richard --- "Transparent, Fair and Impartial: a Snapshot of Tribunals in Singapore" [2004] ALRCRefJl 8; (2004) 84 Australian Law Reform Commission Reform Journal 33

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Reform Issue 84 Autumn 2004

This article appeared on pages 33 – 37 & 70 of the original journal.

Transparent, fair and impartial: A snapshot of tribunals in Singapore

By Richard Magnus*

Little is written on Singapore’s statutory tribunals^[1] probably because of their small number and relatively technical subject matters.

Unlike the United Kingdom, which has more than 2,000 tribunals of varying sizes and functions,^[2] there are only a handful of significant tribunals in Singapore today. There is, therefore, no critical mass to justify devoting review committees like in the UK^[3] and Australia^[4] to study and report on their growth, enact legislation to regulate them,^[5] or create superstructures to ensure uniformity in standards.^[6] Nevertheless, the tribunals in Singapore contribute critically to the administration of justice. They exist as an efficient alternative to the ordinary courts by providing simpler, speedier, cheaper, more accessible, and more specialised justice to the industries, specialist sectors and lay public. Their dedicated functions complement the judiciary.

Types of tribunals

There are three main types of tribunals in Singapore. Tribunals may either make or review administrative decisions, or adjudicate. The decision making tribunals usually deal with licensing matters. For instance, the Liquor Licensing Board grants licences for the sale of intoxicating liquors, and regulates the transfer of licences and the extension of operating hours of premises that sell such liquors. The Hotel Licensing Board registers new hotels, issues and renews hotel keepers’ licences, and ensures that registered hotels maintain prescribed standards of hygiene and safety.

Tribunals that review administrative decisions usually deal with matters of considerable public interest, such as revenue collection and state compensation. In matters of revenue, the Income Tax Review Board, Valuation Review Board (for property tax), and Goods and Services Tax (GST) Review Board review tax assessments by the authorities and, to that extent, act as fiscal policy bodies. The Anti-Dumping Tribunal reviews decisions on imposition of anti-dumping duties for the protection of domestic industries. In matters of compulsory land acquisition for public development, the Land Acquisition Appeals Board reviews decisions on state compensation to ensure fair land valuation and therefore social justice. The Requisition of Resources Compensation Board allows owners of properties and vehicles requisitioned during a peace-time military mobilisation exercise to challenge the compensation awarded by the Ministry of Defence.

The adjudicating tribunals normally deal with disputes involving private parties or entities. The previously active Rent Conciliation Board provided redress for disputes between landlords and tenants over rent assessment, while the Tenants’ Compensation Board dealt with landlords’ compensation for possession of controlled premises. As public housing expands vertically, the Strata Titles Board was created to ensure fair enforcement of house owners’ rights and liabilities inter se. With industrialisation, unions and employers needed the Industrial Arbitration Court to resolve their disputes, taking into account also the nation’s economic interest and industrial relations. The increasing need to protect intellectual property rights as an economic commodity necessitated a Copyright Tribunal to resolve disputes between copyright owners and users of copyright materials. The Maintenance of Parents Tribunal was established to transform an Asian moral—filial piety—into an enforceable legal obligation to maintain one’s aged and dependent parents. Whatever their functions, tribunals in Singapore are transparent, fair and impartial. This article will highlight the more salient examples.

Transparency

Transparency requires the publicity of proceedings and knowledge of the essential reasoning underlying the decisions. The Strata Titles Board constituted under the Land Titles (Strata) Act (Cap 158) is obliged to conduct proceedings in public. The Valuation Review Board constituted under the Property Tax Act (Cap 254), Land Acquisition Appeals Board constituted under the Land Acquisition Act (Cap 152), and the Industrial Arbitration Court constituted under the Industrial Relations Act (Cap 136) conduct open proceedings in practice though the legislation does not expressly so provide. Similarly, the Tenants Compensation Board practised open and public proceedings although the law creating it was silent on this.

Tribunals are obliged to proceed in private only when the confidential nature of the evidence or matter so require, or when it is more desirable not to disclose parties’ identities. Thus, in copyright disputes where sensitive trade information may emanate before the Copyright Tribunal constituted under the Copyright Act (Cap 63), the proceedings may be held in private. Proceedings before the Income Tax Review Board constituted under the Income Tax Act (Cap 134) and the Review Board constituted under the Goods and Services Tax Act (Cap 117A) are heard in camera but parties may apply to have these proceedings heard in public. The underlying rationale is to protect the identity of the affected taxpayer. Similarly, proceedings before the Maintenance of Parents Tribunal constituted under the Maintenance of Parents Act (Cap 167B) are heard in camera but parties may apply to have a public hearing. This is again to protect parties’ identities and to give primacy to the Asian culture of not washing dirty linen in public, unless parties are prepared to waive their confidentiality privilege.

Nevertheless, these tribunals do render public judgments but ensure confidentiality of parties. The Income Tax Review Board, GST Review Board, and Maintenance of Parents Tribunal may publish case facts, arguments and decisions without disclosing the name of taxpayers and parties respectively. The Copyright Tribunal is obliged to state in writing its reasons for making any order, and shall cause a copy of the order and reasons to be available for public inspection during office hours. The Land Acquisition Appeals Board, which deals with compulsory land acquisition, is obliged by law to deliver its decision. The Valuation Review Board gives reasoned decisions. The statutes creating the Strata Title Board and Industrial Arbitration Court are silent on this issue, but in practice both tribunals render and publish reasons.

Another aspect of transparency is the availability of public information on the tribunals. For instance, information on the Industrial Arbitration Court, Copyright Tribunal, Liquor Licensing Board, Hotel Licensing Board, Strata Title Board, Income Tax Review Board, GST Review Board, and Valuation Review Board is easily accessible on Internet websites. Some of these websites even have e-filing facilities and downloadable forms.^[7]

Fairness

Fairness assumes adoption of a clear procedure which enables parties to know their rights, to present their case fully and to know the case which they have to meet. Most tribunals are empowered with discretion to determine the procedures they deem most fair and expedient. Hearings before the Income Tax Review Board, Land Acquisition Appeals Board, Strata Titles Board, and Industrial Arbitration Court are deemed judicial proceedings under the Penal Code (Cap 224). Tribunals are also not bound by strict rules of evidence and need not act formally. Under the Copyright Act, proceedings “shall be informal and expeditious”, and the Copyright Tribunal may waive non-compliance with procedures if the circumstances so warrant. Most tribunals also have prescribed timeframes within which parties must serve notices, papers and documents to give all parties sufficient knowledge of the case to meet. Most tribunals are also statutorily obliged to give parties prior written notice of the date, time and place of the proceedings.

Depending on the subject matter, a party has a right to be heard personally or by proxy before a tribunal. For the Income Tax Review Board and GST Review Board, the proxy may be an accountant or advocate. For the Valuation Review Board, the proxy may be an “agent”. For the Strata Titles Board, the proxy may be any “representative” and the Board “shall give every party an opportunity to be heard”. For the Maintenance of Parents Tribunal, any interested party may appear via a pro bono agent, the Commissioner for the Maintenance of Parents, or an employee of an approved person or organisation. For the Industrial Arbitration Court, the trade union is to be represented by its officer while a non-trade union party shall be represented by the employee or officer of a trade union of which the party is a member.

Most tribunals allow legal representation. The statutes creating the tribunals usually prescribe this right expressly. In Kok Seng Chong v Bukit Turf Club & Anor,^[8] the Singapore High Court held that a domestic tribunal has discretion whether to allow legal representation and it must, in the exercise of such discretion, consider whether in the circumstances of the case, natural justice requires that such representation be allowed. The right to legal representation may expressly, or by necessary implication, be excluded by “appropriate provisions”. The Maintenance of Parents Tribunal and Industrial Arbitration Court are two such examples. They generally do not allow parties to be represented by an advocate save in limited instances. The rationale for excluding advocates lies in the predominantly non-adversarial, non-confrontational and interests-based schemes envisaged in the Maintenance of Parents Act and the Industrial Relations Act. A perusal of the object and scheme of these two Acts will reveal an emphasis on conciliation and arbitration respectively as the primary means of dispute resolution. Given the context, it is unlikely that such exclusion of legal representation provisions would be held unreasonable by the courts.

Statutes creating the Valuation Review Board, Strata Titles Board and Copyright Tribunal contain express provisions allowing cross-examination. For other tribunals, the statutes are silent on this but there is little doubt that the right to confront and cross-examine witnesses of the adverse party is a fundamental principle of natural justice or due process which adjudicatory or review bodies normally observe. In Howe Yoon Chong v Chief Assessor Property Tax,^[9] the Singapore High Court observed that the Valuation Review Board is a tribunal exercising judicial functions and it is neither fair nor just that the taxpayer be subjected to cross-examination on oath while on the other hand the Board accepts the Chief Assessor’s basis of assessment and submission set out in the report, on which he has not been tested by cross-examination, and his statements on valuation from across the Bar table. This precedent illustrates that tribunals, to act fairly, must allow parties a reciprocal right to cross-examine all relevant witnesses.

Almost all tribunals have the power to summon and examine witnesses, and order production of books and documents. For the Income Tax Review Board, Strata Titles Board and Maintenance of Parents Tribunal, this power can be enforced in like manner as a District Court’s order. For the Land Acquisition Appeals Board, because of the more serious consequences that follow from its decision, the power to summon and examine witnesses is as enforceable as a High Court order. The Maintenance of Parents Tribunal and Copyright Tribunal are also empowered to punish for contempt. As hearings before most tribunals are deemed judicial proceedings, witnesses enjoy similar privileges as witnesses of court proceedings and can also be punished for perjury. This helps to safeguard the truthfulness of the evidence. All these features contribute to a fair hearing.

The president or chairman of a tribunal is usually legally qualified. For the Income Tax Review Board and GST Review Board, the chairman can be a District Judge or accountant. For the Copyright Tribunal, Anti-Dumping Tribunal, and Maintenance of Parents Tribunal, the president must possess the qualifications of a District Judge. For the Strata Titles Board, the president or deputy president has to be a qualified person under the Legal Profession Act (Cap 161). These requirements ensure that the tribunal is led by those who can distill objective and relevant evidence from irrelevant information, and apply the correct legal rules fairly and correctly to the relevant facts.

Impartiality

Impartiality connotes freedom of the tribunals from the real or apparent influence of departments concerned with the subject matter of their decisions. In Singapore, the presidents or chairmen and members of tribunals, as well as the support staff such as secretaries and clerks, are usually appointed by the Minister charged with the responsibility of administering the Acts. There are exceptions. For instance, the president and deputy president of the Industrial Arbitration Court which has to take into account Singapore’s economic interest, are appointed by the President of Singapore with the advice of the Prime Minister. The President of Singapore also appoints the commissioner and deputy commissioner of the Land Acquisition Appeals Board, which deals with the important subject of compulsory land acquisition. The express power to make appointments is usually accompanied by the express power of removal and reappointment. The president or chairman and members appointed by the Minister either serve for a duration as determined by the Minister or for a fixed period. The exception is the Industrial Arbitration Court, where the president has the same tenure as, and in fact usually is a Supreme Court judge. Remuneration and allowances of the president or chairman and members are usually determined by the Minister. For the Land Acquisition Appeals Board, the President of Singapore determines the commissioner’s remuneration.

Tribunals are essentially free from political control, since Parliament by creating them has put the very power of decision into their hands and no one else’s. This is even though the appointment of those on the tribunals is by the Ministers. It would be as improper for anyone to try to influence a tribunal’s decision as it would be in the case of a court of law since most tribunal proceedings are deemed judicial proceedings. A decision taken under any sort of external influence would be invalid. Nor are tribunals composed of officials or of people who owe obedience to the administration. Most of those appointed as members to tribunal panels are independent professionals and not civil servants. A number of tribunals are in fact presided over by District Judges from the independent judiciary. Except in limited situations where it is provided that the president or chairman alone can determine the dispute, most tribunals comprise the president or chairman and two or more members selected from an appointed panel consisting of a number of members. For some tribunals, like the Income Tax Review Board and Strata Titles Board, a party may object to the composition of certain members if there is any perceived bias, whereupon other members will take their place.

Most statutes expressly guarantee judicial immunity for the president or chairman and members of tribunals. The law also deems them public servants for the purposes of protecting them against any form of threat or abuse, as offences against public servants are regarded more seriously, with higher maximum punishments under the Penal Code. Tribunal decisions are made by way of majority votes, with the president or chairman having the casting vote in the event of equality of votes. The collective decision making process eliminates or marginalises any potential personal bias, if any. All these safeguards ensure that the tribunals can discharge their functions impartially without fear or favour, and are accountable only to the law. In the final analysis, any party who feels aggrieved by a tribunal’s decision due to its composition can easily appeal against the decision.

Relationship with the Subordinate Courts

Tribunals do not come under the administration of the Subordinate Courts constituted under the Subordinate Court Act (Cap 321), which comprise District Courts, Magistrates’ Courts, the Coroner’s Court, Juvenile Court and the Small Claims Tribunals.^[10] However, District and Magistrates’ Courts can enforce certain tribunals’ orders, and punish for contempt or perjury committed before any tribunal. Under the Subordinate Courts Act, District Judges may, with the Chief Justice’s approval, sit on quasi-judicial and administrative tribunals. They normally hold concurrent statutory appointments as presidents, deputy presidents or chairmen of the Copyright Tribunal, Industrial Arbitration Court, Income Tax Review Board, GST Review Board, Valuation Review Board, Liquor Licensing Board, Hotels Licensing Board, or Anti-Dumping Tribunal. When they perform duties at the tribunals, District Judges bring with them the core values of the Subordinate Courts: accessibility; expedition and timeliness; equality, fairness and integrity; independence and accountability; public trust and confidence.

Direct Supervision by Superior Courts

Tribunals are under the direct supervision of the Supreme Court, which comprises the Court of Appeal and the High Court. The High Court exercises inter alia appellate, supervisory and revisionary jurisdiction over all subordinate courts, defined under the Supreme Court of Judicature Act (Cap 322) to include any “tribunal...from the decisions of which under any written law there is a right of appeal to the Supreme Court”. The Income Tax Review Board and Valuation Review Board provide for direct appeals to the High Court by way of rehearing. The Chief Assessor of Property Tax can also appeal to the High Court against a Valuation Review Board’s decision on questions of mixed law and fact. Parties can appeal against Maintenance of Parents Tribunal’s decisions to the High Court on questions of mixed law and fact, except for consent orders unless it is alleged that such orders were procured by certain vitiating factors. The Strata Titles Board limits appeals to the High Court only to points of law. Parties before the Income Tax Review Board, Maintenance of Parents Tribunal and Copyright Tribunal—or these tribunals on their own motion—may also reserve points of law for the High Court by way of a ‘case stated’. Maintenance of Parents Tribunal decisions can also be corrected by the High Court exercising its revisionary jurisdiction.

The Land Acquisition Appeals Board allows appeals directly to the Court of Appeal on questions of law if the award exceeds S$5,000. It may also directly reserve points of law for the Court of Appeal by way of a ‘case stated’. There is no further right of appeal to the Court of Appeal from a High Court decision on appeal from the Maintenance of Parents Tribunal. Nevertheless, the High Court can reserve questions of law of public interest for the Court of Appeal’s determination.

The Industrial Relations Act expressly prohibits appeal and judicial review against Industrial Arbitration Court awards. But as the Singapore High Court ruled in Re Yee Yut Ee,^[11] such “ouster” or “privative” clause does not remove the court’s jurisdiction to right any wrong due to improper constitution of the tribunal, or if the tribunal lacked or exceeded jurisdiction, or if there was a patent error of law on the face of the record. But since the statutes creating the tribunals invariably provide for a structured appellate process, the exercise of the Supreme Court’s supervisory jurisdiction by way of judicial review is rarely necessary. This is also consistent with the general rule that a judicial review remedy will not be awarded if there is some more convenient remedy, such as via an appeal. Judicial review is therefore in reality of only marginal importance.^[12]

Conclusion

Tribunals are serving Singapore well. They complement the judiciary and contribute significantly to Singapore’s high international ranking for legal framework and the administration of justice. For example, the Hong Kong-based Political and Economic Risks Consultancy (PERC) in its Comparative Country Risks Report 2003 ranked Singapore top in Asia for overall integrity and quality of the legal system. The Swiss-based Institute for Management Development (IMD) in its World Competitiveness Yearbook 2003 ranked Singapore top among countries in Group Two (that is, those countries with a population of less than 20 million) for its legal framework and gave it a score of 8.49 out of 10 for the confidence level in the fair administration of justice.

This article provides a snapshot of certain statutory tribunals in Singapore and outlines the various mechanisms to ensure transparency, fairness and impartiality. There is certainly effective judicial control over the tribunals through the appellate, supervisory or revisionary jurisdiction of the Supreme Court. In a modern society with increasingly complex demands and challenges, tribunals in Singapore play an indispensable role in upholding the rule of law.

* Judge Richard Magnus is the Senior District Judge of the Singapore Subordinate Courts. He is also President of the Copyright Tribunal and the Anti-Dumping Tribunal, Deputy President of the Industrial Arbitration Court, Chairman of the Liquor Licensing Board, Member of the Military Court of Appeal, and Member of the Panel of Advisers, Financial & Securities Advisory Board.

This paper has been researched by District Judge Eric Tin and Senior Director (Legal Services) Ms Anne Durray, Singapore Subordinate Courts.

Endnotes

{1} The term ‘tribunal’ is capable of a wide meaning. This article only discusses statutory tribunals that deal with administrative decisions or adjudicate specific subject matters. Disciplinary tribunals are outside its scope.

{2} The figure is obtained from Wade and Forsyth (eds) Administrative Law (8^th Ed, 2000), 887.

{3} Report of the Committee on Administrative Tribunals and Inquiries (Franks Committee Report) Cmnd 218, 1957.

{4} Australia’s Commonwealth Administrative Review Committee Report 1971 (Kerr Committee Report) Parliamentary Paper No 144 of 1971.

{5} Australia has the Administrative Appeals Tribunal Act 1975 (Cth) while the UK has the Tribunals and Inquiries Act 1992 (UK).

{6} Australia has the Administrative Review Council, the UK has a Council on Tribunals, and the US has a Federal Administrative Conference: see BL Jones (ed) Garner’s Administrative Law (7th Ed, 1989), 291–294.

{7} Hotels Licensing Board <www.hlb.gov.sg/index.stm>; Liquor Licensing Board: <www.gov.sg/customs/liquor/liquorlic.html>; Industrial Arbitration Court: <www.iac.gov.sg/>; Copyright Tribunal: <www.minlaw.gov.sg/copyright/copyright.html>; Land Acquisition Appeals Board: <www.minlaw.gov.sg/appeal/appeal.html>; Strata Titles Board: <www.minlaw.gov.sg/stb/abtus.html>. For the three Review Boards for revenue matters, see <www.mof.gov.sg/ online_services/business_user/B_notice_income.html>; <www.mof.gov.sg/online_services/business_user/B_notice_good.html>; <www.mof.gov.sg/online_services/ business_user /B_notice_appeal.html>.

{8} [1993] 2 SLR 388.

{9} [1978– 1979] SLR 292.

{10} Small claims tribunals deal primarily with small consumer claims for goods and services and minor tortious actions for property damage. Although their functions are more akin to tribunals than courts in that legal representation is prohibited, proceedings are informal and findings not bound by strict rules of evidence: see Small Claims Tribunals Act (Cap 308), they come under the administration of the Subordinate Courts. For more information, see <www.smallclaims.gov.sg>.

{11} [1978– 1979] SLR 344.

{12} A similar observation was made in P Cane, An Introduction to Administrative Law (2^nd Ed 1992), 327.