Case puts councillors’ duties in spotlight: Lawyers
SMU School of Law Professor Tang Hang Wu, Associate Professor Eugene Tan, and Lecturer Benjamin Joshua Ong commented on the argument, made by the independent panel acting on behalf of Aljunied-Hougang Town Council (AHTC) to recover improper payments, that the town council members named in the civil lawsuit are fiduciaries — or persons placed in a position of trust — of the town council. Mr Ong said there is “no definitive ruling by the court” as to whether council members hold fiduciary duties to the council. Hence, the court “will first have to rule decisively on whether the defendants owe fiduciary duties to the town council in the first place”. Assoc Prof Tan said the defendants could claim in court that they did not. He said under general law, the town councillors are likely to be treated as having fiduciary duties. They are akin to company directors and directors of charities and institutions of a public character. The concept of fiduciary obligations was first developed in the context of trust between a trustee and a beneficiary, said Prof Tang. Assoc Prof Tan added that a breach of fiduciary duties is a civil case and does not suggest criminality. So if the court rules in favour of the town council, the defendants would be asked to “make restitution or an equitable settlement” instead of paying a fine. In this case, the independent panel has “no legal powers to prosecute”, said Assoc Prof Tan, so “depending on the alleged offence(s), it could be the Housing Development Board (HDB) and/or the Attorney-General as the public prosecutor pursuing the matter”. Mr Ong said: “To make out a civil claim successfully, the plaintiff only needs to prove its claim on the balance of probabilities. In a criminal case, on the other hand, the prosecution must prove its cases beyond a reasonable doubt.”
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