SCHOOL OF LAW Year 2013/14, Term 2 LAW204: CONSTITUTIONAL & ADMINISTRATIVE LAW (G1 & G51) Instructor: Eugene KB Tan, Associate Professor of Law Tel: 6828-0778 Email: eugene@smu.edu.sg Office: Level 4, Room 4008 Lee Kong Chian School of Business Building Class Schedule G1 Tuesdays, 3:30-6:45 pm - SOA/SOL Seminar Room 3-4 Thursdays, 8:15-9:45 am - SOA/SOL Seminar Room 3-3 G51 Tuesdays, 8:15-11:30 am - SOA/SOL Seminar Room 3-3 Thursdays, 10:00-11:30 am - SOA/SOL Seminar Room 3-3 NB: This is a reading intensive course which carries 1.5 cu. This means that you should put it at least 1½ times the amount of time and effort that you do for your other 1.0 cu modules. I do not use PowerPoint in my teaching. Students are, of course, not precluded from using PowerPoint; in fact, you are welcomed and encouraged to use PowerPoint and other medium for their presentations. The course is taught with a heavy emphasis on class discussion. I do not believe in spoon-feeding. Spoon-feeding may well work in the interest of expediency for the examinations. But such a teaching/learning method only compromises your long-term development as a life-long learner. Please note that I do not go through every item or question on the reading list. Students are, however, expected to know what each reading stands for or exemplifies. Students are encouraged to attempt the seminar questions indicated for each reading list. 1
COURSE DESCRIPTION This 1.5 course-unit course introduces the principles of constitutional law and administrative law, collectively known as public law, with particular reference to Singapore. Constitutional law is concerned with the organization of the state, and the interrelationship between the government, civil society, and the individual. Administrative law is about the governance of public bodies exercising statutory or other powers or performing public duties. We are generally concerned with the rights of the individual vis-à-vis the state, how law, institutions, and norms promote good governance, how political power and public law functions are legitimated, how abuses of public power are prevented or remedied. The course is notionally divided into two parts. One part deals with the constitutional structure of the Singapore legal system, and will cover fundamental concepts such as constitutionalism, democracy, the rule of law and the separation of powers. It will also consider the roles of, and issues relating to, the branches of government: the Executive, Legislature and Judiciary. The other part of the course focuses on the courts duty of judicial review under the Constitution and in administrative law. In particular, we seek to understand how the role of judges differs when they engage in these two forms of judicial review; and to appreciate key framework issues in constitutional interpretation, including the attitude towards foreign jurisprudence, the application of an originalist or dynamic approach, and the value of balancing rights and other interests. In this course, we should remember that law is not self-acting. Constitutional and administrative law needs society, government, and the courts to breathe life through construction, interpretation, execution, and contestation into the statutes and constitutional documents. Constitutionalism exemplifies the rule of law; democracy subscribes to the rule of law but also envisions the rule of people as well. Some of the overarching questions that will present themselves throughout the course include: Must the rule of law always trump the rule of the people? To what extent should reason and constitutional constraints bound and constrain the will of the people? PRE-REQUISITE/ CO-REQUISITE/ MUTUALLY EXCLUSIVE COURSE(S) There is no pre-requisite for the course. 2
REQUIRED TEXT AND READINGS If you wish to acquire textbooks for the course, the following are strongly recommended: 1. Thio Li-ann, A Treatise on Singapore Constitutional Law (Singapore: Academy Publishing, 2012); Call No.: Course Reserves: KPP171.T45 2012 1 2. Kevin YL Tan and Thio Li-ann, Constitutional Law in Malaysia and Singapore, 3rd edition (Singapore: LexisNexis, 2010); Call No.: Course Reserves: KNC524.T36 2010 3. Peter Leyland & Gordon Anthony, Textbook on Administrative Law, 6th edition (Oxford: Oxford University Press, 2009); Call No.: Course Reserves: KD4879.L49 2009 2 In addition, you will need the Constitution of the Republic of Singapore (1999 Reprint), and amendments up to 2012. Please see the table at the end of this course outline for a list of the amendments you will need to know. The Constitution and its amendments are available online on LawNet (http://www.lawnet.com.sg) and at Singapore Statutes Online (http://statutes.agc.gov.sg). Note that a hard copy of the 1999 Reprint of the Constitution is required for the final open-book examination Readings from law journals, books and other sources will also be assigned. Most of these readings should be obtainable from the Li Ka Shing Library, or from an online database such as LawNet, LexisNexis, HeinOnline, or Westlaw. If they are not, the reading list will indicate where you should be able to access a copy. Other books you may find useful to refer to are listed below. These generally relate to the English public law, so you will need to refer to them critically and consider whether the English position is applicable in the Singapore context. Please note also that the list is not at all exhaustive. 1 For those wishing to purchase only one constitutional law text, we recommend Thio s Treatise as many of the materials in Tan & Thio s casebook can be obtained from LawNet and other databases, and from the Library. Academy Publishing has informed us that Thio s Treatise can be purchased at a student price (20% discount) if you have a (free) associate student membership of the Singapore Academy of Law. To apply for membership, go to http://www.sal.org.sg/content/li_mbrshp_as.aspx. With your membership number and password, go to the Academy Publishing website and place your order. There is no cost for delivery of the book. Academy Publishing may also have a student book fair on campus in Week 1 or Week 2. You should be able to purchase Leyland & Anthony and Tan & Thio from BookLink. 2 The 7th edition of this work was published in 2012 and may be used for the course, but Asst Prof Jack Lee and I are presently recommending the use of the 6th edition. Reading lists will contain references to the 6th edition. We understand that Academy Publishing will be publishing a book on Singapore administrative law in the near future (but not in time for this course), and there is a good chance that we will recommend that book for the course in future years. This will probably affect the resale value of second-hand copies of the 7th edition of the work. 3
Li-ann Thio & Kevin Y L Tan (eds.), Evolution of a Revolution: Forty Years of the Singapore Constitution (Oxford & New York: Routledge- Cavendish, 2009); Call number: Course Reserves KPP171.E85 2009 Ian Loveland, Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction (4th edition) (Oxford: Oxford University Press, 2006); Call number: K3165.C59 2006 William Wade & Christopher Forsyth, Administrative Law (9 th /10 th edition) (Oxford: Oxford University Press, 2004); Call number: Course Reserves KD4879.W3 2004 Lord Woolf, Jeffrey Jowell & Andrew Le Sueur, De Smith s Judicial Review (6th edition) (London: Sweet & Maxwell, 2007); Call number: Course Reserves KD4902.D48 2007 Peter Cane, Administrative Law (4th ed/5 th ed) (Oxford: Oxford University Press, 2004/2011); Call number: KF5425.C22 2004 Photocopied versions of textbooks or any other materials created in breach of copyright laws are not to be used in my classes, and such illegal copies will also not be allowed into the examination hall for the final open-book examination. 3 Prof Jack Lee s sections participate in the SMU Constitutional and Administrative Law Wikipedia Project (https://en.wikipedia.org/wiki/wikipedia: School_and_university_projects/SMU_Constitutional_and_Administrative_Law_ Wikipedia_Project), which are students entries uploaded on Wikipedia. ASSESSMENT COMPONENTS Individual assessment components account for 80% of the final grade. The components of each student s final grade are as follows: Class participation 10% Group oral presentation 10% Group written report 10% Individual research paper 30% Final examination 40% Key elements of each assessment mode are provided below. More details on each assessment mode will be provided in due course, and in the first seminar. 3 For information on the School of Law Book Allowance Scheme, see http://www.smu.edu.sg/financial/assistance_schemes/book_allowance.asp. 4
IMPORTANT: All acts of academic dishonesty (including, but not limited to, plagiarism, cheating, fabrication, facilitation of acts of academic dishonesty by others, unauthorized possession of exam questions, or tampering with the academic work of other students) are serious offences. All work presented in class must be the student s own work. Any student caught violating this policy may result in the student receiving zero marks for the component assessment or a fail grade for the course. This policy applies to all works (whether oral or written) submitted for purposes of assessment. When in doubt, students are encouraged to consult the instructors of the course. The SMU Code of Academic Integrity may be accessed at http://www.smuscd.org/resources.html. Class participation (10%): The focus is on quality of participation. Make it a habit to join in actively and purposefully in class discussions. It will greatly facilitate your learning, and make class interesting. Adequate preparation for classes will make class participation a natural extension of your learning. Take ownership for your learning. Be mindful of distractions like emails, internet and social media platforms. They not only affect your learning but the seminar room environment as well. Group Project (10% + 10%): This assessment component comprises of two parts: the group presentation and the group essay. Please note that I will assign students to their project groups. Learning from your peers is an under-rated attribute in SMU. For the group project (consisting of the oral presentation and written report), students will be assigned to their groups by the instructor. The presentation schedule will be made available in due course on SMUVista. All students are required to attempt the seminar question(s) as part of the seminar preparations. It will assist in your learning process while helping you to participate meaningfully in the seminar discussions. It s also good practice for the exams. The duration of each group s presentation should not exceed 45 minutes, including Q&A. Presentations should be as interactive as possible, drawing in the entire seminar class to participate in a collaborative learning process. The presentation should not be an oral version of the written report. The group presentation and group report components of the course account for 25% of the final grade. The written report is to be submitted a week after the presentation. This is to enable the groups to incorporate feedback gathered during the presentation. The group report should be word-processed and double spaced. Please observe the word limit of 2,500 words (a range of 2,000 words should be fine) and indicate the word count. 5
Individual Research paper assignment (30%): The individual research paper will be a paper of about 2,500 to 3,000 words. A choice of topics will be available. Final Examination (40%): This 3-hour open-book examination is scheduled for Tuesday, 15 April, 08:30-11:30 am. Students are encouraged to word-process their answers. COURSE METHODS Primarily, the Socratic Method and its variants are adopted. In addition, a variety of pedagogical methods are utilized in line with SMU emphasis on faculty-student and student-to-student interactivity, active class participation, and group work. Wherever applicable, relevant comparative perspectives are raised and discussed as well. In line with SMU s pedagogical philosophy, students are expected to be well-prepared for seminars, as well as participate actively and constructively in seminars. Much of the learning is done in the preparation for seminars and through in-class participation, peer learning, and personal reflection. The better prepared one is for seminars, the more likely is one able to discuss the issues intelligently and with discernment. Participating meaningfully in seminars will facilitate the learning process, and contribute to the appreciation of the course and its utility in the life of a citizen and a lawyer. Be prepared to work hard (as you would know by now, that s what law school is about!) and work intelligently. The course tends to be more conceptual than other required law courses and requires an awareness of the non-legal aspects of government broadly understood. Although, the course often throws up issues that often do not lend themselves to scientific truth, the approach of objective analysis, reasoned arguments, and good understanding of the cases and legislation is necessary. In preparing for seminars, students should: Cover the required/recommended cases and readings and think about the issues raised; Go beyond minimal reading to other sources, including the mass media and Internet, to maintain awareness of topical issues for discussion in class; Give prior thought and consideration to the topic to be covered and forming personal views, ideas and questions to be raised at the seminars; and Where possible, consider and raise issues directly pertinent to them as individuals, the government, and the courts. 6
Also, public law issues are often contested by judges, politicians and academics, who take sometimes sharply opposing views on them. So be prepared for grey areas where there may be no clear answers. 7
TOPICS TO BE COVERED The table below sets out the topics (non-exhaustive) that we will be covering in the course and a broad schedule, although this is subject to change. Please note that the topics may not be covered in the sequence that they appear. No. Topic Constitutional Structure Judicial Review of Administrative Action 1 Introduction to Constitutional Law and Constitutional Development in Singapore (and Malaysia) Basic Constitutional Concepts: constitutionalism and limited government, separation of powers, and the rule of law 2 The Legislature of Singapore The Executive of Singapore 3 The Judiciary of Singapore Judicial review of Administrative Action 4 Grounds of Judicial Review in Administrative Law I: Illegality Grounds of Judicial Review in Administrative Law II: Irrationality and Proportionality 5 Grounds of Judicial Review in Administrative Law II: Irrationality and Proportionality (continued) Grounds of Judicial Review in Administrative Law III: Procedural Impropriety 6 Grounds of Judicial Review in Administrative Law III: Procedural Impropriety (continued) Remedies and Threshold Issues in Administrative Law Judicial Review in Constitutional Law 7 Judicial Review in Constitutional Law 8 Fundamental Liberties I: Rights to Equality and Equal Protection 9 Fundamental Liberties II: Rights to Freedom of Speech, Assembly and Association (including a brief introduction to citizenship law) 8
No. Topic 10 Fundamental Liberties II: Rights to Freedom of Speech, Assembly and Association (continued) Fundamental Liberties III: Right to Freedom of Religion 11 Fundamental Liberties III: Right to Freedom of Religion (continued) Remedies and Threshold Issues in Constitutional Law Exclusion of Judicial Review 12 Exclusion of Judicial Review and the Internal Security Act 9
AMENDMENTS TO THE CONSTITUTION OF SINGAPORE SINCE 1999 The key amendments to the Constitution you will need to know for the course are highlighted in the following table with asterisks. The relevant Acts supplements may be accessed on LawNet and from Singapore Statutes Online (http://statutes.agc. gov.sg). Act No Name Brief Description of Key Changes *2 of 2001 Constitution of the Republic of Singapore (Amendment) Act 2001 *Addition of Arts 142(2) (4) (treatment of net investment income). 32 of 2001 Constitution of the Republic of Singapore (Amendment No 2) Act 2001 Amendment of Art 114(2) (pensions). *24 of 2002 Constitution of the Republic of Singapore (Amendment) Act 2002 Amendment of Art 22B(9) (budgets of statutory boards ignore, as this provision was changed again by No 12 of 2004). Amendment of Art 46 (consequences when MPs subject to disqualification). *Amendment of Fourth Sch (extension of NMPs term of office from two to two and a half years). Amendment of Fifth Sch (removal of Board of Commissioners of Currency from list of key statutory boards). *12 of 2004 Constitution of the Republic of Singapore (Amendment) Act 2004 *Amendment of Arts 22B(9) and 22D(8) (transfers between past reserves of Government and SBGCs). Minor amendment of Art 144(3) (restrictions on loans, guarantees, etc). *Addition of Art 148I (transfer of Government s past reserves). 31 of 2007 Constitution of the Republic of Singapore (Amendment) Act 2007 Amendment of Art 22(1) (members of Legal Service Commission added to list of key office holders over which President has veto). Amendment of Arts 37A, 37B and 37H, and addition of Art 37C (changes to Council of Presidential Advisers). 10
Act No Name Brief Description of Key Changes *27 of 2008 Constitution of the Republic of Singapore (Amendment) Act 2008 *Amendment of Art 142 (President s concurrence with Minister for Finance on long-term real rates of return on relevant assets). Minor amendment of Art 144 (3) (restrictions on loans, guarantees, etc). *9 of 2010 Constitution of the Republic of Singapore (Amendment) Act 2010 *Amendment of Art 39 (maximum number of NCMPs increased to nine). *Amendment of Fourth Schedule (NMP scheme made permanent). 11