Kenny Chng: An innovative invocation of substantive legitimate expectations in Singapore

The Singapore Court of Appeal, the final appellate court in Singapore, has in Tan Seng Kee v Attorney-General [2022] SGCA 16 (“Tan Seng Kee”) recently revisited the vexed question of the constitutionality of section 377A in Singapore’s Penal Code—a provision which criminalises homosexual acts between men whether such acts are committed in public or private. In addition to Tan Seng Kee’s obvious socio-political significance, a point that will be of interest to the readers of this blog is that the crux of the decision rested on a novel invocation of the common law doctrine of substantive legitimate expectations. Indeed, Tan Seng Kee marked the debut of the substantive legitimate expectations doctrine in the Singapore Court of Appeal, albeit with a carefully-circumscribed scope of application.

This post will briefly describe the decision in Tan Seng Kee and will critically evaluate the Court of Appeal’s application of the substantive legitimate expectations doctrine. A fuller analysis can be found in my case note forthcoming in Public Law.

The decision in Tan Seng Kee

Tan Seng Kee concerned a set of appeals stemming from constitutional challenges to section 377A. The appellants sought to challenge section 377A by invoking various rights in the Singapore Constitution. By way of background, the Singapore Parliament had in 2007 debated whether section 377A ought to be repealed, and had ultimately voted to retain the provision with the qualification that the government would not proactively enforce it. In 2018, Singapore’s Attorney-General Mr Lucien Wong SC clarified that the government’s policy of non-proactive enforcement of section 377A did not amount to an interference with the prosecutorial discretion—rather, the Attorney-General had exercised his prosecutorial discretion in deciding that the prosecution of consenting adult men in private under section 377A would not be in the public interest.

The Court of Appeal in Tan Seng Kee found that these contextual points were legally significant. Indeed, the court held that the Attorney-General’s statements constituted “representations that s[ection] 377A will generally not be enforced in cases of sexual conduct between consenting adult men in private” (at [88]), and thought that these statements ought to be imbued with legal effect through a “limited recognition of the doctrine of substantive legitimate expectations” (at [117]). The legal effect of the substantive legitimate expectation created by the Attorney-General’s statements was that section 377A was rendered unenforceable in its entirety. This legitimate expectation of non-prosecution would only be obviated if the Attorney-General provided “in clear and unambiguous terms, reasonable notice of his intention to resile” from the representations made in 2018 (at [138]-[139]). The Court of Appeal also clarified that this recognition of the substantive legitimate expectations doctrine was wholly exceptional and did not amount to a broader acceptance of the doctrine in Singapore law.

The Court of Appeal’s holding that the Attorney-General’s statements had given rise to this legitimate expectation of non-prosecution was legally decisive. Indeed, the court thought that this meant that none of the appellants faced “any real and credible threat of prosecution under this provision” (at [153])—which in turn meant therefore that the appellants did not have locus standi to mount constitutional challenges against section 377A under the law of standing for judicial review in Singapore. Accordingly, the constitutional challenges failed.

A departure from orthodoxy?

Tan Seng Kee was a creative effort to strike a careful legal compromise on a thorny issue. Central to this compromise was the Singapore Court of Appeal’s recognition of the substantive legitimate expectations doctrine, albeit in a limited sense. Such recognition was somewhat unexpected, given that the same court in SGB Starkstrom Pte Ltd v Commissioner for Labour [2016] 3 SLR 598 had expressed considerable reluctance to accept the doctrine. Tan Seng Kee therefore represents an important milestone in the development of Singapore administrative law.

However, the Court of Appeal’s application of the substantive legitimate expectations doctrine in Tan Seng Kee presents several points of departure from an orthodox understanding of the doctrine.

First, it is quite questionable whether the Attorney-General’s statements in 2018 amounted to a “clear, unambiguous and unqualified” representation at all—a basic prerequisite for the legitimate expectations doctrine. As described earlier, the Attorney-General’s intent in making those statements was to clarify that his prosecutorial discretion was not fettered by the government’s policy of non-proactive enforcement of section 377A. Reading his 2018 statements closely with this context in mind, it becomes quite clear that the Attorney-General was seeking to affirm that he retained full prosecutorial discretion to assess whether prosecutions under section 377A would be in the public interest, and that decisions not to prosecute under section 377A thus far had been made precisely on the basis that such prosecutions would not have been in the public interest pursuant to his prosecutorial discretion. It is therefore a little peculiar that the Attorney-General’s statements would now be read as a representation that he was thereby limiting his own prosecutorial discretion.

Second, even if the Attorney-General’s statements could have been found to give rise to a legitimate expectation, the scope accorded to the purported legitimate expectation in Tan Seng Kee represents another point of possible departure from an orthodox application of the substantive legitimate expectations doctrine. Indeed, it will be recalled that the Court of Appeal took the view that section 377A was unenforceable in its entirety, despitethe fact that the Attorney-General’s statement was directed only at non-prosecution against consenting adults in private places. It is rather at odds with substantive legitimate expectations orthodoxy for a representation to give rise to a legitimate expectation with legal effect extending beyond the representation itself.

Third, on the basis of the Court of Appeal’s reasoning in Tan Seng Kee, it is difficult to rationalise what the legal effect of the purported legitimate expectation is. If the effect of this legitimate expectation is to allow the Attorney-General to change or depart from a policy of non-prosecution if sufficient justifications are proffered for such change or departure (as an orthodox application of the doctrine would provide for), one might be concerned about how such a legal effect would cohere with the Court of Appeal’s view that the protection from prosecution accorded by the legitimate expectation was sufficiently concrete to obviate any standing the applicants had to mount a constitutional challenge to section 377A. On the other hand, if the legal effect of the purported legitimate expectation is to render any change to or departure from the non-prosecution policy impermissible, save in the situation where the Attorney-General provides reasonable notice of an intention to resile from the representation (which would mean that there was no legitimate expectation in the first place), this would amount to a substantial departure from legitimate expectations orthodoxy.

In sum, while Tan Seng Kee was a creative effort to navigate a difficult issue, the Singapore Court of Appeal’s invocation of the substantive legitimate expectations doctrine appears to have departed in various respects from an orthodox understanding of the doctrine. Should the Singapore courts be minded in future to revisit the acceptance of the doctrine more broadly into Singapore administrative law, these doctrinal departures ought first to be carefully addressed.

Addendum: On 21 August 2022, the Singapore government signalled its intention to repeal section 377A of Singapore’s Penal Code. Nevertheless, the analysis in this post of the Singapore Court of Appeal’s maiden application of the substantive legitimate expectations doctrine still stands.

Kenny Chng is an Assistant Professor of Law and Lee Kong Chian Fellow at the Yong Pung How School of Law at the Singapore Management University.

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