SCHOOL OF LAW SINGAPORE MANAGEMENT UNIVERSITY CONSTITUTIONAL AND ADMINISTRATIVE LAW (LAW204)

REMEDIES AND THRESHOLD ISSUES IN ADMINISTRATIVE AND CONSTITUTIONAL LAW NOTES ON STANDING
by Dr Jack Tsen-Ta Lee I. A. APPLICABLE TESTS Scope of Tests The same tests apply to both prerogative orders and declarations: o [T]he intent of the excerpt above [from Eng Foong Ho v AG [2009] 2 SLR(R) 542, CA] was to unify the threshold of locus standi for cases brought under O 15 r 16 and cases brought under O 53 r 1: *Tan Eng Hong v AG [2012] 4 SLR 476 at 512, [76], CA. o In Eng Foong Ho v AG [2009] 2 SLR(R) 542 (Eng Foong Ho) it was established that the locus standi requirements were to be the same across the different remedies sought, regardless of their historical roots: *Jeyaretnam v AG [2014] 1 SLR 345 at, [39], CA. The Tan Eng Hong; *Vellama d/o Marie Muthu v Attorney-General [2013] 4 SLR 1, CA; and Jeyaretnam cases all involve constitutional claims. We do not yet conclusively know whether the same standing tests apply to administrative law claims. However, it is likely that the courts will apply the same tests because there does not appear to be any good reason to distinguish between constitutional and administrative law in this regard, since the same remedies can be sought for either type of claim. An applicants standing does not crystallise at the point when proceedings are initiated, but remains subject to review until the courts arrive at a final determination: Vellama at 9, [14]. This makes standing unusual compared to other threshold issues, because even though an applicant may have standing when the action was commenced, if he or she subsequently ceases to have standing due to a change in circumstances the courts can dismiss the case (though they may have a discretion to allow the case to continue see paragraph 2, p 4).

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LAW204: Notes on Standing

B.

Assessment of Whether an Applicant has Standing

From a reading of Tan Eng Hong, Vellama and Jeyaretnam, it appears that whether an applicant has standing should be assessed according to the following steps: [0. Breach of a Public Duty. [T]here must firstly be a public duty which has been breached; without such a breach, there can be no question of whether an applicant has standing or not: Jeyaretnam at 371, [64]. In the three cases, the Court of Appeal did not clearly explain what it meant by a public duty (have a look, though, at Jeyaretnam at 365370, [52][61]), but I think this requirement may simply reflect the fact that the action taken or decision made by a body must be amenable to judicial review. If the amenability tests are not satisfied, then the body is not exercising a public duty but a private one, and the applicant must try and seek remedies in private law. Thus, I do not think this is actually one of the steps for determining whether an applicant has standing, which is why I have numbered it 0 and put it in brackets.] 1. If the Public Authority has Allegedly Breached a Public Duty, what Right Does this Generate? There are three possibilities: (1) It generates private rights. (2) It generates public rights. (3) It generates neither public nor private rights. (Jeyaretnam at 371, [64].) Distinction between private and public rights. A private right is one held and vindicated by a private individual, while a public right is one held and vindicated by public authorities: Tan Eng Hong at 510, [69]; Vellama at 14, [28]; Jeyaretnam at 363, [46]. The relevant meanings of vindicate are to maintain or defend a cause against opposition; to assert a right to. Thus, to put it another way: o A private right is enjoyed by an individual in a personal capacity. The individual can vindicate or assert the right by personally taking action against the public authority without having to involve the AttorneyGeneral or proving special damage. (See paragraph 2 below, p 3.) (Note that it is possible for a breach of public duty to give rise to identical private rights held by other potential litigants in the same class as the applicant. This is not the same as the breach giving rise to a public right. Each person affected has an individual right to take action against the authority: see Vellama at 16, [32].) o A public right arise[s] from public duties which are owed to the general class of affected persons as a whole and is thus shared in com* denotes essential readings; denotes readings for information only Jack Tsen-Ta Lee, 2014

LAW204: Notes on Standing

mon with other citizens: Vellama at 1617, [33] (original emphasis). In general, public rights must be vindicated or asserted by public authorities, in particular the Attorney-General. However, an individual can bring an action if he or she (1) joins the Attorney-General in a relator action; or (2) can prove special damage: Vellama at 1415, [29]). (See paragraph 3 below, p 6.) 2. Private Right Generated. Requirements. To have standing, the following requirements must be satisfied (Karaha Bodas Co LLC v Pertamina Energy Trading Ltd [2006] 1 SLR(R) 112, CA), cited in Tan Eng Hong at 511, [72]): o the applicant must have a real interest in bringing the action; o there must be a real controversy between the parties to the action for the court to resolve; and o the declaration must relate to a right which is personal to the applicant and which is enforceable against an adverse party to the litigation. Real Interest. o Relationship with Sufficient Interest. An applicant must show that he or she has sufficient interest, but this is prima facie made out once there is a violation of a constitutional right: Tan Eng Hong at 514515, [83]. Thus, it appears that when a remedy is sought, the applicant will only have a sufficient interest if he or she has a real interest in the matter, such as if a constitutional right is alleged to have been violated. o According to Tan Eng Hong, a constitutional right can be violated in one of several ways: By an arrest, detention, charge or prosecution under an allegedly unconstitutional law: at 517, [91]. A subsisting prosecution is not required: The effects of a law can be felt without a prosecution, and to insist that an applicant needs to face a prosecution under the law in question before he can challenge its constitutionality could have the perverse effect of encouraging criminal behaviour to test constitutional issues.: at 522, [110]. By the showing of a real and credible (and not merely fanciful) threat of future prosecution under an allegedly unconstitutional law: at 523, [112]. It is conceivable that the very existence of an unconstitutional law in the statute books suffices to show such violation (and, thus, to found standing) in an extraordinary case, although we caution that no such case has ever been brought
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LAW204: Notes on Standing

to the attention of the courts here.: at 517518, [94]. In certain cases, the very existence of an allegedly unconstitutional law in the statute books may suffice to show a violation of an applicants constitutional rights: at 512, [110] (all emphasis added). (However, the CA said at 522, [109] that we will not lay down a general rule that the very existence of an allegedly unconstitutional law in the statute books suffices to demonstrate a violation of an applicants constitutional rights [original emphasis].) Personal Right. o Karaha Bodas at 120, [15] the plaintiff must be asserting the recognition of a right that is personal to him. The CA cited Lord Wilberforce in Gouriet v Union of Post Office Workers [1978] AC 435 at 483, HL (UK)), who said that declaratory relief cannot be granted unless the plaintiff, in proper proceedings, in which there is a dispute between the plaintiff and the defendant concerning their legal respective rights or liabilities either asserts a legal right which is denied or threatened, or claims immunity from some claim of the defendant against him or claims that the defendant is infringing or threatens to infringe some public right so as to inflict special damage on the plaintiff. o (In Karaha Bodas, the CA (at [22]) declined to follow the more flexible approach taken in Re S, because it was based on new legislation whereas O 15 r 16 of the Rules of Court in Singapore states: No action or other proceedings shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether or not any consequential relief is or could be claimed. The Court said at [25]: In Singapore, the legislation concerning the power to grant declaratory reliefs still includes the requirement that the declaration be one of right. This restriction has been taken out of the English provisions and the English courts therefore, arguably, have more wide-ranging powers than we do. When Lord Diplock made his famous pronouncement in Gouriet, the legislation in force was identical to our O 15 r 16. As a matter of construction of the courts powers, therefore, as far as the Singapore courts are concerned, the approach of Lord Diplock is as authoritative as it ever was.) o A person will be asserting a personal right if he or she claims that a constitutional right has been violated: Tan Eng Hong at 513514, [80]. Real Controversy. o A requirement to ensure that the courts do not have to give advisory opinions on abstract, hypothetical and/or academic questions instead of deciding on real disputes. In Salijah bte Ab Latef v Mohd Irwan bin Abdullah Teo [1996] 2 SLR(R) 80, the court identified
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LAW204: Notes on Standing

two rationales: (1) if the courts were to decide hypothetical matters, this would distract them from deciding real, subsisting problems; (2) if there is in fact no real issue subsisting, then the matter would not be res judicata, nor the issue merged in judgment. In that event, it would be open for the issue to be reopened again and again. The need for the existence of a contested dispute is to ensure that there is finality in the courts judgments as well.: Tan Eng Hong at 527, [132]. o Absence of a real controversy does not mean the court has no jurisdiction to hear a case. It simply means the court has a discretion not to hear it if it thinks fit: Tan Eng Hong at 528, [137]. A key factor that the court will take into account in deciding whether to hear an academic case is whether it is in the public interest for the court to do so: at 531, [145]. To determine this, the court may look at the following: Whether all sides of the argument will be fully and properly put: National Coal Board v Ridgeway [1997] 3 All ER 562 at 604, and Bowman v Fels [2005] 1 WLR 3083 at [12] and [15], cited in Michael Victor Gawler v Paul Raettig [2007] EWCA Civ 1560 at [37]. Court not likely to hear matter if issue is likely to affect a large number of people who will have no say in the decision: Rolls-Royce v Unite the Union [2010] 1 WLR 318 at [59]. Whether counsel have been instructed by those with a real interest in the outcome of the case: Gawler v Raettig, ibid. o A real controversy will exist if: There is an arrest, detention or charge under an allegedly unconstitutional law: Tan Eng Hong at 532540, [151][172]. There is a real and credible threat of prosecution: at 541, [178]. o (There appears to be a large degree of overlap between the real interest and the real controversy requirements. The facts that an applicant will rely on to show that his or her constitutional rights were arguably violated, and that he or she has a real interest in asking for a declaration, may also be relied on to show there is a real controversy in the matter. Quaere whether there will ever be a matter where there is a real interest but no real controversy.) Example of Private Right being Generated. Tan Eng Hong constitutional rights guaranteed to the applicant by Arts 9 and 12 of the Constitution alleged to have been breached: Jeyaretnam at 365, [51].

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LAW204: Notes on Standing

3. Public Right Generated. Where a public authority has breached a public duty and this leads to an infringement of public rights, a person only has standing to bring judicial review proceedings if he or she suffered special damage and had a genuine private interest to protect or further: Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12 at 27, cited in Tan Eng Hong at 510, [69] and Jeyaretnam at 363, [46]; compare Boyce v Paddington BC [1903] 1 Ch 109 at 114, cited in Jeyaretnam at 359, [36]. Vellama and Jeyaretnam simply refer to an interference with a public right without specifying how such an interference is to be established (see, for example, Vellama at 1516, [30][31]; Jeyaretnam at 359, [36]). In any case, it seems that the elements of the Karaha Bodas test need not be satisfied when determining whether a public right has been generated. Although arguably an applicant might be able to show that he or she has a real interest in the matter and that a real controversy exists, by definition it will not be possible to show the violation of a personal right (otherwise the matter would be one in which a private right is generated). Special damage. o Rationale. To avoid courts being inundated by a multiplicity of actions, some raised by mere busybodies and social gadflies, to the detriment of good public administration. Taken collectively, these rules on standing espouse an ethos of judicial review focused on vindicating personal rights and interests through adjudication rather than determining public policy through exposition. Matters of public policy are the proper remit of the Executive, and decoupling judicial review from the fundamental precepts of adversarial litigation would leave the courts vulnerable to being misused as a platform for political point-scoring.: Vellama at 1617, [33][34], cited in Jeyaretnam at 363364, [47]. o Meaning. Special damage is either damage to the interest common to all members of the public but quantitatively greater than that suffered by other members of the public, or damage qualitatively different from that suffered by the public, that is, damage to some interest not shared by the public generally. Peter Cane, The Function of Standing Rules in Administrative Law [1980] Pub L 303 at 313314, cited in Vellama at 19, [40]. It does not have to be pecuniary in nature: Australia Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 at 527, HC (Aust), cited in Vellama at 1920, [41]. The Australian equivalent is special interest. [A]n interest does not mean a mere intellectual or emotional concern. A belief, however strongly felt, that the law generally, or a par* denotes essential readings; denotes readings for information only Jack Tsen-Ta Lee, 2014

LAW204: Notes on Standing

ticular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi.: Australia Conservation Foundation at 530531, cited in Vellama at 20, [42]. [S]pecial damage might also possibly encompass those rare and exceptional situations where a public body has breached its public duties in such an egregious manner that the courts are satisfied that it would be in the public interest to hear it. However, we maintain that this is a very narrow avenue which concerns only extremely exceptional instances of very grave and serious breaches of legality.: Jeyaretnam at 370, [62]. Example of Public Right being Generated. Vellama applicant possessed a public right as a voter of a constituency which was without an MP, but because she could not show that she had suffered special damage compared to other voters of the constituency, she lacked standing: Vellama at 20, [43]; Jeyaretnam at 365, [51]. 4. Neither Private nor Public Rights Generated. In general, where a public authority has breached a public duty but neither private nor public rights are generated, no one has standing to bring judicial review proceedings. Mere fact of citizenship in itself does not satisfy the standing requirement for constitutional challenges. [A]n applicant must demonstrate a violation of his constitutional rights before locus standi can be granted. This will prevent mere busybodies whose rights are not affected from being granted standing to launch unmeritorious constitutional challenges (see R v Greater London Council, Ex parte Blackburn [1976] 1WLR 550 at 559D). It is only where a persons rights have been or are threatened to be violated that that person ceases to be a mere busybody.: Tan Eng Hong at 514, [82]. Public Interest Exception. However, in rare cases where the breach is of sufficient gravity such that it would be in the public interest for the courts to hear the case, an applicant who lacks rights may be accorded standing at the discretion of the courts: Jeyaretnam at 371, [64]. Consequence. There are some types of breaches of the Constitution that no private individual has standing to challenge. Only the following can be done: o Convince the court that it is in the public interest for the matter to be heard.

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LAW204: Notes on Standing

o Ask the Attorney-General to challenge the breach personally or join him to the suit in a relator action. However, the AG will not wish to so if he does not think there has a breach of administrative or constitutional law. o If the issue involves the fiscal powers of the President, he has power under the Constitution to highlight certain matters to the Government. (If the President was indeed concerned and inclined to veto the commitment, he would have done so: Jeyaretnam at 369, [61].) Example where neither Private nor Public Right Generated. Jeyaretnam he is unable to assert any rights private or public to the alleged breach of duty [alleged failure of the Government to comply with Art 144], because there is none to be had: his claim is brought in the public interest: Jeyaretnam at 365, [51]. II. A. COMPARISON WITH LEGAL POSITION IN THE UK Narrow Approach: ex parte Rose Theatre Trust

The narrow approach to standing is demonstrated by *R v Secretary of State for the Environment, ex parte Rose Theatre Trust Co [1990] 1 QB 504 HC (QB) (Eng & Wales). Applying the Fleet Street Casuals case (R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, HL (UK)), the court held as follows: The test is whether the statute expressly or impliedly gives an individual a greater right or expectation than any other citizen to have a decision taken lawfully. If not, then that individual does not have standing: at 522. Whether an applicant has a sufficient interest to apply for judicial review is not purely a matter for the courts discretion. No direct financial or legal interest in the matter is required for a sufficient interest. It is useful to look at the statute and see if it gives the applicant a right enabling him to have a duty performed by the decision-maker. However, merely asserting an interest does not give one an interest. Similarly, the fact that many people join together and assert an interest does not create an interest if the individuals do not have an interest. The same applies if those without an interest incorporate a company and in its memorandum give it the power to pursue a particular objective. One also cannot obtain sufficient interest by writing to the decision-maker, even if a considered reply is given. Its true that if a particular individual or group is not given standing, certain administrative decisions will go unrebuked and unrevealed. But the law doesnt require the courts to be there for every individual interested in

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LAW204: Notes on Standing

litigating the legality of an administrative decision. The UK Parliament could have given such a wide right of access to people, but did not. Note that on the facts, ex parte Rose Theatre Trust was a case in which public rights were generated. It is thus similar to Vellama. Leyland & Anthony (6th ed) at 444 regard the case as something of an exception. Wade & Forsyth (10th ed) at 597 note that in ex parte Rose Theatre Trust the judge did not make any allowance for the strength or weakness of the case, which according to the Fleet Street Casuals case should have been significant. However, the judge did dismiss the case on its merits before dealing with the standing point, so perhaps the case is best regarded as one where an arguable issue was not shown. B. Broad Approach: ex parte World Development Movement Ltd

Under the current approach in *R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd [1995] 1 WLR 386, HC (QB) (Eng & Wales), an applicant will have standing if: It is important to vindicate the rule of law. The issue raised is important. The merits of the challenge are an important, if not the dominant, factor when considering the standing issue. The real question is whether the applicant can show some substantial default or abuse, not whether personal rights or interests are involved. There is likely to be an absence of any other responsible challenger. (On facts, neither the government or any citizen of a foreign country denied aid would be, in practical terms, likely to bring a challenge.) In the Fleet Street Casuals case, it was stated that there would be a great lacuna if a pressure group or a single public-spirited taxpayer were prevented by outdated rules of locus standi from bringing a matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped. The Attorney-General, in practice, never applies for prerogative orders against government departments. Further, it is no answer to say that government departments are accountable to Parliament because they are only accountable for efficiency and policy, for which Parliament is the only judge. They are responsible to the court for lawfulness, and for this the court is the only judge. There is a serious breach of duty. In the Fleet Street Casuals case it was said that the court may give standing to somebody who would not otherwise qualify where the issue is exceptionally grave or widespread illegality is alleged. The applicant plays a prominent role in giving advice, guidance and assistance with regard to the matter.
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LAW204: Notes on Standing

10

The ex parte World Development Movement test is wide enough to allow people to bring public interest claims such as the Jeyaretnam case. Should the Singapore courts move towards recognizing such wide standing? (Note that ex parte World Development Movement was referred to in passing in Jeyaretnam v AG [2013] 1 SLR 619 at 633, [43], HC, as an example of the liberal approach in the UK.)

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Jack Tsen-Ta Lee, 2014