User:Umarabd

(Abstract) Jeyaretnam Kenneth Andrew v. Attorney-General is a Singapore constitutional law case that was decided in the High Court in 2012 and upon appeal, in the Court of Appeal in 2013. Kenneth Andrew Jeyaretnam, the Secretary-General of the Reform Party, alleged that the Government of Singapore's contingent loan commitment to the International Monetary Fund via the Monetary Authority of Singapore was not made in accordance with the procedures set out in Article 144 of the Constitution of the Republic of Singapore.

Issues before the High Court
The High Court dealt with the following issues in ascertaining whether leave should be granted for Jeyaretnam's application:
 * (a) whether the complaint is susceptible to judicial review;
 * (b) whether the material before the court discloses an arguable case or a prima facie reasonable suspicion in favour of granting a declarations and prerogative orders; and
 * (c) whether the applicant has sufficient interest in the matter (“the Third Issue”).

Before the court, both parties agreed that the subject matter of the proceedings was susceptible to judicial review. The court then went on to dismiss the application for leave on the grounds that the application did not disclose a prima facie case of reasonable suspicion in favour of granting the remedies sought. For completeness’ sake, he went on to deal with the Third Issue.

The parties’ arguments
The Attorney-General argued that even though the present case involved a real controversy, Jeyaretnam had no real interest in bringing the action and that the remedy sought did not relate to an enforceable personal right against the other party. This was an application of the test in Karaha Bodas Co LLC v. Pertamina Energy Trading Ltd and Another Appeal (“Karaha Bodas”). Under this test, for an applicant to have standing, he has to prove that:
 * (a)   He had a “real interest” in bringing the action;
 * (b)   There is a “real controversy” between the parties to the action for the court to resolve
 * (c)   The remedy sought for relates to the applicant’s personal right, which is enforceable against the adverse party to the litigation.

On the other hand, Jeyaretnam relied on Chan Hiang Leng Colin v Minister for Information and the Arts (“Colin Chan”) to argue that an applicant would have standing to enforce constitutional rights if he has “sufficient interest” in seeing that those rights are not violated. He further argued that this threshold was met.

The Third Issue
Although Tan J had already dismissed the application for leave on on the grounds that the application did not disclose a prima facie case of reasonable suspicion in favour of granting the remedies, his Honour felt it necessary to deal with the Third Issue for the sake of completeness. Even so, Tan J ultimately concluded that Jeyaretnam lacked standing to bring the case.

The appropriate test for standing
The court first cited the Court of Appeal case of Tan Eng Hong v. Attorney-General (“Tan Eng Hong”) where it was held that the Karaha Bodas test (which had been used when declarations were sought) should apply even where the remedies sought include prerogative orders. The court also agreed with the holding in Tan Eng Hong that the element of real controversy would not affect the court’s jurisdiction, and that the court has the discretion to hear a matter even in the absence of a real controversy.

The High Court further relied on Tan Eng Hong to explain the distinction between a public and private right. In the first case, the right “is held and vindicated by public authorities”. In the latter case, the right is “held and vindicated by a private individual”. On the present facts, the case at hand involved a “public right” and not a private right.

The High Court recognised that the English position has become more liberal, but was of the opinion that this liberalisation did not apply in Singapore. The court cited the Malaysian decision of Government of Malaysia v. Lim Kit Siang (“Lim Kit Siang”) that the relaxation of locus standi rules were due to amendments made to the English Rules of the Supreme Court which were not made in Malaysia.

The Singapore case of Tan Eng Hong then relied on Lim Kit Siang and suggested that the locus standi threshold in Singapore is unlikely to be lowered to dispense with the requirement that an applicant who seeks to enforce a public right must have been personally affected by the decision being challenged. In other words, special damage would have to be shown if a public right was involved.

Decision on the issue of standing
Following from the above reasoning, the court rejected Jeyaretnam’s argument that an applicant would have standing once he proves that he has sufficient interest in seeing that his constitutional rights are not violated. In the first place, Colin Chan was a case revolving around private rights, whereas Article 144 of the Singapore Constitution is concerned with a public right. Second, it was held by the Court of Appeal in Tan Eng Hong that Colin Chan did not stand for the proposition that applicants in constitutional cases need not prove a violation of their personal rights to have standing.

In reaching its decision, the High Court observed that in Tan Eng Hong, which concerned a private right, citizenship was insufficient to establish standing. Crucially, an applicant had to show the violation of a personal right where fundamental liberties are concerned. By parity of reasoning, an applicant in a public right case would have to show special damage as a result of the public act challenged, and that he had a genuine interest to protect or further. Jeyaretnam had failed to satisfy this requirement.

Reception of the High Court decision
Although the High Court indicated that the Karaha Bodas test was the applicable test for locus standi, there seemed to be a disconnect between the elements of the test and the court’s eventual holding. It has been suggested that the disconnect can be bridged by regarding special damage and genuine interest as factors under the first limb of the Karaha Bodas test.

It has also been suggested that the High Court’s decision that special damage must be shown in a public right case meant that “Singapore is unlikely to develop standing rules along the lines of an actio popularis (where a member of the public brings an action in the interests of public order, not on the basis of suffering any particular or special damage).”