User:Sgconlaw/Tan Eng Hong v. Attorney-General (standing)

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Tan Eng Hong v. Attorney-General  was a constitutional law case where the Singapore Court of Appeal overturned a decision made by the Singapore High Court against Tan Eng Hong ("Tan"). The High Court had found that whilst Tan had locus standi to bring an application challenging the constitutionality of Section 377A of the Penal Code, the application disclosed no real controversy to be adjudicated. Thus, the Assistant Registrar’s original decision to strike out Tan’s application was upheld.

Tan subsequently appealed against the High Court’s decision, attempting to establish that he had an arguable case as this would be sufficient to prevent the striking out of his application.

The Court of Appeal considered in detail whether the test for locus standi in applications involving constitutional rights was different from, or less strict than the test laid down in Karaha Bodas Co. LLC v. Pertamina Energy Trading Ltd.  (“Karaha Bodas”). It was held that the case of Eng Foong Ho v. Attorney-General (“Eng Foong Ho”) did not provide support for a lower threshold of locus standi.  Utilizing the case of Chan Hiang Leng Colin v. Minister for Information and the Arts  (“Colin Chan”) as support,  the court affirmed the applicability of the Karaha Bodas test, holding that an applicant must demonstrate a violation of constitutional rights to be granted locus standi. Additionally, it was decided that the “real controversy” requirement went to the court’s discretion, conferring discretion upon the court to hear a case in the absence of a real controversy. The Court of Appeal further held that a subsisting prosecution was not necessary to establish a violation of constitutional rights, and endorsed the High Court’s view that a real and credible threat of future prosecution would suffice. Also, the mere existence of an allegedly unconstitutional statute may also suffice to demonstrate a violation of constitutional rights.

Two other legal issues were also considered; namely, whether the applicable test for locus standi was satisfied on the facts, and whether the facts raised any real controversy to be adjudicated. The Court of Appeal answered both questions in the affirmative, and eventually decided in favor of Tan.

Facts and issues
The appellant, Tan, a male, was arrested for engaging in oral sex with another male in a public place. Both of them were charged under section 377A of the Penal Code, which punishes males who commit an act of gross indecency with another male with imprisonment of up to two years. Tan then applied for a declaration to declare section 377A of the Penal Code to be unconstitutional on the ground that it violates Articles 9, 12 and 14 of the Constitution.

Thereafter, the Prosecution amended the charge to section 294 (a) of the Penal Code. Section 294(a) refers to the offence of committing an obscene act in a public place. Tan pleaded guilty to section 294(a). After the charge was substituted, the Attorney-General applied to strike out Tan’s original application for a declaration and succeeded. Tan then appealed against this decision to the High Court. The High Court judge held that Tan had locus standi. However, as there was no real controversy, the decision was not overturned. Tan appealed against the High Court’s decision for striking out his application to the Court of Appeal.

The issues before the Court of Appeal were whether:
 * 1) Tan had a reasonable cause of action under Article 4 of the Constitution.
 * 2) The test for locus standi in applications concerning constitutional rights were different from the test for locus standi laid down in Karaha Bodas.
 * 3) Whether a subsisting prosecution under an allegedly unconstitutional law was necessary to fulfill locus standi to challenge the constitutionality of that law.
 * 4) If the above  is unnecessary, whether a real and credible threat of prosecution would then be necessary.
 * 5) The test for locus standi has been satisfied.
 * 6) Whether any constitutional rights were at stake.
 * 7) Whether Tan’s constitutional rights were violated.
 * 8) The facts raise any real controversy to be adjudicated.

The court found in favour of Tan on all four issues.

The test of locus standi for constitutional challenges in Singapore
The crux of this appeal is whether Tan had locus standi to bring an application. Locus standi, or standing, is the legal right of a party to appear and be heard before a court.

Applicability of the Karaha Bodas test
The threshold requirements for standing in administrative law challenges was set out in Karaha Bodas:
 * 1) The applicant must have a “real interest” in bringing the action;
 * 2) There must be a “real controversy” between the parties to the action for the court to resolve; and
 * 3) There must have been a violation of a personal right.

The appellant argued that a lower threshold of standing is applicable in constitutional challenges and a violation of an applicant’s personal rights is not required. He interpreted the earlier case of Eng Foong Ho v. AG as creating an exception to the Karaha Bodas test. Conversely, the Attorney-General argued that the requirements for standing in constitutional challenges are the same as those in administrative law challenges, and that a threshold of “sufficient interest” must be satisfied.

In light of these arguments, the court concluded that the standing requirements in constitutional challenges remained that of the Karaha Bodas test. Following the cases of Eng Foong Ho and Colin Chan, the court held that both a violation of a personal right as well as a “real interest” must be shown for an applicant to have locus standi.

"Violation of a personal right" as a necessary requirement
The court first discussed the third requirement in the Karaha Bodas test, which was that a personal right must have been violated. Following Colin Chan and Eng Foong Ho, the court held that an applicant must show that his constitutional rights, which are always personal rights, had been violated before locus standi can be granted.

In Colin Chan, it was decided that membership in any society need not be demonstrated for an applicant to have standing. The appellant interpreted this to mean that an applicant need not show that his constitutional rights were violated before he may be granted locus standi.

However, the court rejected this interpretation. Rather, it was held that Colin Chan only decided that membership in any society was not required to demonstrate the existence of a constitutional right. Furthermore, the court found that Colin Chan accepted that a violation of personal rights must be demonstrated. This was inferred from the statement in Colin Chan that “any citizen can complain to the courts if there is a violation of…his constitutional rights”. Therefore, Colin Chan did not decide that a violation of constitutional rights was no longer a requirement for locus standi to be granted in constitutional cases.

In relation to Eng Foong Ho, the court held that the constitutional rights of the applicants’ in that case were arguably violated. Such violation was demonstrated when the applicants’ membership in the Buddhist Association was affected by a compulsory acquisition of the temple’s premises. The court emphasized that the mere fact of a Singaporean’s citizenship would not suffice for standing to be granted, and a violation of constitutional rights must be demonstrated. This requirement will prevent “mere busybodies” from launching “unmeritorious constitutional challenges”.

The "real interest" requirement
The court held that a “real interest” is a necessary requirement for locus standi in constitutional cases. Whether or not there was a “real interest” depends on the rights which are the subject matter of the application. It was also noted that, following Colin Chan, a citizen would have a “sufficient interest to see that his constitutional rights are not violated” unless proven otherwise.

Demonstrating violation of a constitutional right
The court emphasized that demonstrating a violation of a constitutional right is the crux of proving standing in constitutional challenges. This is because once a violation of a constitutional right is shown, the “real interest” requirement in the Karaha Bodas test is prima facie made out. As such, the court clarified several issues that have a bearing upon what constitutes a violation of a constitutional right.

A subsisting prosecution
First, the court held that a subsisting prosecution under an allegedly unconstitutional law is not necessary to demonstrate a violation of constitutional rights. Following Colin Chan, the fact that the applicants were facing prosecution was not relevant in an application to bring a constitutional challenge.

In holding thus, the court disagreed with the AG’s argument that Colin Chan may not apply. This is because Colin Chan concerned an executive order, while the present case concerned a legislative provision. The court held that such a distinction could not be made as it suggested that Ministerial orders are always rigidly enforced, which could not be the case. A purported distinction between Colin Chan and the present case based on specificity of targeting was also rejected. The court then proceeded to state that violations of constitutional rights may occur when a person is arrested, detained, and/or charged under such a law.

Existence of an allegedly unconstitutional law
Second, the court stated that the mere existence of an allegedly unconstitutional law in the statute books suffices to demonstrate a violation of constitutional rights in certain cases. However, this is not a general rule whereby the very existence of law would constitute a violation in every case. The court highlighted the importance of striking the balance between ensuring greater access to justice for some applicants and the concern of denying access to justice for others if standing requirements were extensively relaxed.

Whether the very existence of the law constitutes a violation depends on the specific facts of each case, and what the relevant law specifically provides for. For instance, a violation is more likely demonstrated when the law exclusively targets a specific group of which the applicant is a member. The court noted that such a finding would only occur in an extraordinary case, and that no such case has been tried in Singapore courts.

The court relied on the cases of Croome v. The State of Tasmania (“Croome”), and Leung v. Secretary for Justice (“Leung”) to arrive at this conclusion. In Croome the applicants were allowed to bring an application challenging the constitutionality of Tasmania’s sodomy laws. This was despite the fact that they were not prosecuted under the relevant provisions. Similarly, in Leung, the court held that the lack of a prosecution did not prevent an application from being granted. The applicant’s rights were affected by the mere existence of the law.

The court also dismissed the Attorney-General’s arguments that the very existence of an allegedly unconstitutional law cannot demonstrate a violation in all cases. The Attorney-General first contended that this proposition would require courts to answer legal questions in the abstract. The court emphasized that such a concern was overstated as it would be rare that the mere presence of an allegedly unconstitutional law would demonstrate violation. Second, the Attorney-General argued that every piece of legislation may subsequently require the courts’ validation. This would lead to a significant increase in litigation. However, the court stated that the laws enacted by Parliament are already valid because of Singapore’s system of parliamentary sovereignty. Hence, there is no need for courts to declare such laws as valid. Furthermore, the fear of a significant increase in litigation is not a concern in constitutional challenges as it is unlikely that a multiplicity of litigation would result. More importantly, applicants possess a right to vindicate their constitutional rights, even if the violation may affect a great number of people.

The need for a real and credible threat of prosecution
The court affirmed the High Court’s holding that a threat of future prosecution under an allegedly unconstitutional law that is “real and credible and not merely fanciful” suffices to show a violation of constitutional rights. In holding thus, the court added that individuals have a right not to be prosecuted under an unconstitutional law. This may give rise to a “form of suffering” where people liable under an allegedly unconstitutional law have to wait in uncertainty to see whether they will be successfully prosecuted.

The relevance of alternative remedies
In particular, the absence of alternative remedies is a relevant factor in determining whether locus standi ought to be granted. The court concluded that in light of Unión de Pequeños Agricultores v. Council of the European Union (supported by Commission of the European Communities), the absence of alternative remedies favours a relaxation of the standing requirement.

In the present case, the court overruled the High Court’s holding that standing requirements ought not to be relaxed. The relevance of Article 100 of the Constitution as an alternative remedy was not found to be sufficient. Article 100 allowed for the President of Singapore to refer to a constitutional tribunal “any question as to the effect of any provision of [the] Constitution which has arisen or appears to [the President] likely to arise”. The court gave the following reasons as to why Article 100 does not suffice as a viable alternative remedy:
 * 1) Article 100 was enacted for the sole purposes of resolving actual and potential disputes between constitutional organs, and was not intended to allow individuals to “obtain advisory opinions of hypothetical cases from the courts.”
 * 2) Although individuals may petition for the President to convene the Constitutional Tribunal under Art 100, they cannot compel the President to do so.
 * 3) The President has no power to convene the Constitutional Tribunal on his own initiative when Article 100 is read with reference to Article 21, as he must defer to the advice of the Cabinet.
 * 4) The findings of the Constitutional Tribunal do not bind the government.

Further, the court found no alternative remedy in the instant case. In Croome, the standing requirements were relaxed despite the availability of an alternative remedy. This is because of the long-standing practice in Australia for the Attorney-General to seek declarations on the constitutionality of various legislative provisions. Therefore, individuals were entitled to be availed of the same right. In contrast, the Attorney-General in Singapore does not have the practice of seeking declarations on the constitutionality of the provisions. Though this may indicate that applicants in Singapore should not be availed of the same right, the court conversely interpreted the lack of practice as an indication that individuals in Singapore have even fewer alternative remedies. Thus, the court held that Singapore should be more inclined to consider a relaxation of our standing requirements as well.

Application of the test for locus standi in Tan Eng Hong v. AG
After clarifying the elements for the test of locus standi, the court turned to consider whether Tan’s constitutional rights were arguably violated on the facts of the case. In considering Articles 9, 12 and 14 of the Singapore Constitution, the court was satisfied that section 377A was arguably inconsistent with Article 12, which threatened Tan’s constitutional rights. Thus, Tan was found to possess locus standi to bring the Application.

The constitutional rights at stake
The court first considered whether any constitutional rights were at stake in the appeal.

Article 9

Article 9(1) provides that “no person shall be deprived of his life or personal liberty save in accordance with law.”

The court affirmed a narrow interpretation of Article 9(1) as advocated in the case of Lo Pui Sang v. Mamata Kapildev Dave. This meant that Article 9(1) only conferred the right to personal liberty against unlawful incarceration or detention. Thus, it was found that Tan’s rights were not engaged by the very existence of section 377A in the statute books.

However, the court held that Tan’s Article 9(1) rights were engaged on the present facts, as Tan was purportedly arrested under section 377A. He noted that despite a narrow interpretation, Article 9 still conferred the right on an accused person to not be detained under an unconstitutional law. As section 377A was arguably unconstitutional with Art 12, Tan’s arrest and detention would potentially have violated his right to liberty.

Article 12

Article 12(1) provides that “all persons are equal before the law and entitled to the equal protection of the law.”

The Court of Appeal affirmed the High Court’s decision that section 377A arguably violated rights under Article 12. The test of constitutionality under Art 12(1), as articulated in Yong Vui Kong v. PP, is that a differentiating measure prescribed by legislation would be valid if:
 * 1) The classification was founded on an intelligible differentia; and
 * 2) The differentia bore a rational relation to the object sought to be achieved by the law in question.

The court concurred that whilst section 377A was founded upon intelligible differentia, it was arguable that there was no social objective furthered by criminalizing male but not female homosexual intercourse. Thus, whilst the first limb of the test was satisfied, the second limb was arguably not.

It was further held that as Tan was a member of the group targeted by section 377A, his rights were potentially violated by the mere existence of section 377A in the statute books. However, it was emphasized that the court was not deciding that section 377A was inconsistent, but merely that it was arguably so. This sufficed for the appeal in the current case as the issue was only with regards to whether the appellant has locus standi.

Article 14

The Court of Appeal held that section 377A did not violate any of the three limbs of Article 14. Further, the court expressed the view that the issue regarding the distinction between criminalizing “gross indecency” between male but not female homosexuals was best dealt with under Article 12.

The presence of "a real controversy" in Tan Eng Hong v. AG
The court emphasized the need for the existence of a real controversy between parties, and found that it was present on the facts. Following Salijah bte Ab Latef v. Mohd Irwan bin Abdullah Teo a real controversy refers to a question that is real and not theoretical. The person raising it must have a genuine interest to do so. The rationale for the “real controversy” requirement is that theoretical issues may distract courts from deciding real and subsisting problems. Furthermore, it ensures finality in courts’ judgments. It was held that a lis (a cause of action) was essential, as without it, the court would potentially provide mere opinions on abstract, hypothetical questions rather than adjudicate real disputes.

On the facts, the "real controversy" requirement was met as a cause of action was created in two ways:
 * 1) Tan was arrested, investigated, detained and charged under section 377A;
 * 2) There was a real and credible threat of prosecution under section 377A.

However, the Court of Appeal first established that the "real controversy" requirement related to the discretion of the court.

Relation to the court's discretion
Prior to establishing whether the “real controversy” requirement was satisfied on the facts, the court first considered whether the requirement relates to its jurisdiction or discretion. If it goes to the court’s jurisdiction, it would mean that the failure to satisfy the requirement would result in the court not having the power to hear the case. This is because it will be acting ultra vires. However, if it went to the court’s discretion, the failure to meet the requirement is not fatal to the application. This is because the court would then weigh the factors and circumstances. As long as the court has good reasons for proceeding to hear a case despite the absence of a real controversy, it will not be acting ultra vires.

The court held that the “real controversy” requirement goes to its discretion and not its jurisdiction. The principle in Zamir & Woolf: The Declaratory Judgment (Lord Woolf & Jeremy Woolf eds) (Sweet & Maxwell, 4th Ed, 2011) that the absence of a real controversy will not necessarily deprive the court of its jurisdiction was affirmed. The court cited English cases and the Hong Kong case of Leung for the proposition that courts can grant declarations on purely academic points. With that said, the court will not hear such a theoretical case unless it is of academic value to the parties or public. This was not to be seen as an exception to the “real controversy” requirement. When there is a real legal interest in a case being heard, there is a real controversy to be determined. Legal interest, however, must be distinguished from mere socio-political interest which courts are not well placed to determine.

In determining what constitutes a proper case for the exercise of the court’s discretion, a key factor in favour of the court hearing an academic issue is that it is in the public interest for the court to do so. However, the Court of Appeal expressed caution in considering this factor as it may affect a large number of people with little say in the court’s decision, and reiterated that each case turns on its particular facts.

Proceedings under section 377A
The Court of Appeal then examined the two key facts of the appeal:
 * 1) Tan was arrested, investigated, detained and charged under section 377A.
 * 2) The Section 377A charge was later substituted with a charge under section 294(a).

Considering both facts, the court concluded that there was a cause of action at the point when Tan was detained under section 377A. Further, this cause of action subsisted despite the later substitution of the section 377A charge.

Fact 1: Tan’s arrest, investigation, and detection

As previously stated, prosecution was not necessary for the violation of constitutional rights. A violation of constitutional rights could occur earlier, when an accused is arrested and detained under such a law. As such, Tan’s right to liberty under Article 9 would have been violated by his arrest and detention under section 377A if it were unconstitutional.

Second, the court rejected the Attorney-General’s argument that Tan was not explicitly detained under section 377A. This is despite the range of possible offences that Tan could have been arrested and detained under. This conclusion was arrived at based on the repeated indication of section 377A on documents relating to his arrest and bail, and the identification tags on his belongings. Additionally, it was pointed out that Tan was indeed charged under section 377A.

Furthermore, the court rejected the Attorney-General’s argument that the existence of an alternative legitimate means of detention under section 294(a) negated the potential unconstitutionality of detention under section 377A. This decision was based upon the case of Regina (Lumba) v. Secretary of State for the Home Department. The court held that it would be wrong to say that the detention would have been the same regardless of whether it proceeded under section 294(a) or section 377A. It was concluded that the difference lay in the legality of the actual detention. Hence, attributing the detention to section 294(a) after the charge was amended would not negate the fact that there was an actual violation of Tan’s constitutional rights at the time of his detention under section 377A. This is based on the assumption that section 377A is unconstitutional.

Fact 2: The substitution of the section 294(a) charge for the section 377A charge

The court held that the substitution of the section 294(a) charge for the section 377A charge did not negate the violation of Tan’s constitutional rights when he was initially detained under section 377A. It was held that whilst the substitution extinguished the section 377A charge, it did not negate the fact that Tan’s constitutional rights had been violated.

The AG’s argument was premised on the notion that the substitution of the section 294(a) charge led to detention under section 294(a) becoming the subject matter of review. However, this was rejected as the court emphasized that the subject matter always remained the constitutionality of section 377A. The two cases cited by the AG in support of their argument were then distinguished. The case of R v. Secretary of State for the Home Department, ex parte Turgut was distinguished as the legal effects of a charge under section 377A and section 294(a) were not the same, whilst The Queen on the Application of Rathakrishnan v. Secretary of State for the Home Department was distinguished as there was no “pending fresh decision” in the current case.

A real and credible threat of prosecution under section 377A
The court held that there was a real and credible threat of prosecution under section 377A. This was despite the fact that the government has released ministerial statements regarding the lack of active enforcement of section 377A.

The appellant contended that as long as section 377A exists, the law enforcement agencies are free to arrest and the AGC is free to prosecute individuals. Mere assurances from the Executive are unlikely to convince individuals that there is no real and credible threat of prosecution under section 377A. The appellant further raised evidence of two cases where the police issued stern warnings for private consensual sex between male homosexuals.

On the other hand, the AG argued that there is no real and credible threat of prosecution for Tan. With reference to the two cases, the Attorney-General mentioned that the police did not check for continued compliance with the warnings.

The court agreed with the appellant that releasing ministerial statements to inform the public that section 377A would not be proactively enforced did not mean that section 377A would not be enforced. Therefore, it is still possible for men engaging in conduct caught by section 377A to be prosecuted, thereby creating a real and credible threat of prosecution. In addition, these ministerial statements are part of the Government’s policies and are subject to change. Also, law enforcement agencies and the Attorney-General's Chambers are not bound by those ministerial statements. Thus, there is still a real threat of prosecution under section 377A.

With regard to the homosexual men who had been issued stern warnings, the court stated that they could still be prosecuted under section 377A if caught again. To this extent, the court found a real threat of prosecution under section 377A.

The court also held that individuals have a right not to be prosecuted under an unconstitutional law. Otherwise, individuals may only obtain standing to challenge the constitutionality of the statute if they act against the law and risk prosecution. The mere existence of a real and credible threat of prosecution under an unconstitutional law would already amount to a violation of constitutional rights and is therefore a real controversy to be determined.

Reception of Tan Eng Hong
The locus standi test in Tan Eng Hong was applied in all subsequent constitutional cases in Singapore. First, Vellama d/o Marie Muthu v. Attorney-General concerned the scope and exercise of the Prime Minister’s discretion in calling an election to fill the casual vacancy of an elected Member of Parliament. The Court of Appeal applied the test and held that the applicant did not have locus standi. The court clarified the position on locus standi in cases of violation of a public right. Also, it will only recognise locus standi in such situations when the applicant incurred special damage. Second, in Jeyaretnam Kenneth Andrew v. Attorney-General, the applicant brought judicial review against the Singapore government alleging that a loan given by the government to the Internal Monetary Fund breached Article 144 of the Constitution. Similarly, the court applied the locus standi test in Tan Eng Hong and found that the applicant did not have locus standi.