User:Ziwei1234/sandbox

Parties' arguments
Jeyaretnam challenged the High Court decision by raising two main arguments. First, he disagreed with the position taken in Tan Eng Hong and argued that it is not necessary for an applicant to prove he had a personal right to have standing. Second, he argued that even if Tan Eng Hong was correctly decided, the court still had broad discretion to find standing for an applicant to apply for declarations in a public law case. Alternatively, the court should apply a lower standard in relation to prerogative orders such as prohibiting and quashing orders.

The Attorney-General, in turn, argued that the position consistently adopted in Tan Eng Hong and Karaha Bodas should not be departed from. In addition, the Attorney-General drew a clear distinction between Singapore’s standing rules set out in the Rules of Court and those that currently prevail in England.

Holding of the Court of Appeal
Having established that Jeyaretnam was unable to pass the threshold of raising a prima facie question of reasonable suspicion that the loan made to the International Monetary Fund was in contravention of Article 144 of the Constitution, the court’s holding on the issue of locus standi was obiter dicta. Nonetheless, the Court of Appeal saw the “sheer importance” in determining this issue and proceeded to decide whether Jeyaretnam possessed the requisite standing to bring the claim.

Function of the law on standing
The Court of Appeal began by distinguishing private law and public law actions. For private law actions, both the right to apply for a remedy and the entitlement to a remedy are dealt with in the same action. In contrast, for public law actions, standing is a preliminary issue that has to be determined before the merits of a claim are considered. In this sense, the rules of standing functions as a procedural barrier to prevent the multiplicity of litigation brought by busybodies. Hence, not every member of the public should have the right to bring judicial review proceedings, and the appropriate test for determining standing turns on the nature of the rights at stake, i.e. whether they are private or public.

Historical development
Ordinarily, when a public authority exceeds its statutory powers in such a way as to interfere with public rights, it is the Attorney-General that is the proper plaintiff for bringing an action to protect these rights. A private individual cannot bring such an action except in the name of the Attorney-General through a “relator” action.

However, without the Attorney-General’s sanction, courts would lack authority to give remedies where public authorities were clearly exceeding their statutory powers. The English courts lamented that this approach was too narrow. Thus, in Boyce v Paddington BC, two exceptions to this approach ("the Boyce test") were developed so that an applicant would have standing to bring an action if: These exceptions were affirmed in the subsequent House of Lords’ decision in Gouriet v Union of Post Office Workers (“Gouriet”). In turn, Gouriet was adopted by the Singapore Court of Appeal in Karaha Bodas, for the proposition that an applicant needs to have a “real interest” in the declaration he is seeking.
 * 1) he had a private right which was interfered with("the first Boyce exception"); or
 * 2) he had a public right and had suffered “special damage peculiar to himself from the interference with the public right("the second Boyce exception").

Colin Chan
The court regarded Colin Chan as the starting point for determining what the test for standing is. In that case, Prakash J held that that “sufficient interest” was still the applicable standard to meet, although this standard was not as liberal when compared to the standard used in the UK. She held that:


 * [The appellants’] right to challenge Order 405/1994 arises not from membership of any society. Their right arises from every citizen’s right to profess, practise and propagate his religious beliefs. If there was a breach of Art 15, such a breach would affect the citizen qua citizen. If a citizen does not have sufficient interest to see that his constitutional rights are not violated, then it is hard to see who has.

Nonetheless, the Court of Appeal in the present case rationalised Colin Chan by observing that locus standi could also be established on the basis that the appellants were alleging a violation of their constitutional rights qua citizens under Article 15 of the Singapore Constitution.

Eng Foong Ho v Attorney-General ("Eng Foong Ho")
The subsequent case of Eng Foong Ho equalised the standing requirements for the different remedies sought.

Originally, it was held in Colin Chan that the pre-1977 English position on rules of standing applied in Singapore. Under this position, the test of standing had different levels of discrimination for different remedies. For example, any member of the public could have standing to apply for prohibition or quashing orders, whereas only applicants whose legal rights were in issue or who had suffered special damage could apply for private law remedies such as declarations and injunctions.

Thereafter, the English amendments to its Rules of Court led to the adoption of the singular test of “sufficient interest” for all claims. However, unlike the UK, the Singapore Court of Appeal in Eng Foong Ho unified the tests of standing under the more inflexible Boyce test instead. The decision in Eng Foong Ho also affirmed that the 2011 amendments made to the Rules of Court allowed applicants to seek on top of prerogative orders in a single application.

Tan Eng Hong
Next, the Court of Appeal proceeded to examine the decision in Tan Eng Hong. It was observed that Tan Eng Hong affirmed Eng Foong Ho for its unification of locus standi rules under the Boyce test. Therefore, the definitive Singapore position was that it was insufficient for an applicant to show that he possessed a personal right; he also had to show a violation of that personal right. However, little was said about the situation where an applicant brought a claim for a public right because Tan Eng Hong was a situation that solely involved the applicants’ public rights.

Vellama and the green-light approach in Singapore
The Court of Appeal then examined the decision in Vellama, where the claim involved the applicant’s public right. It was held in Vellama that where the claim involved the applicant’s assertion of a public right, ‘special damage’ has to be proved to distinguish his claim from that of other potential litigants. Otherwise, the courts will face “a multiplicity of actions, some raised by mere busybodies and social gadflies, to the detriment of good public administration.”

According to Vellama, this stringent requirement is in line with a judicial attitude of preferring adversarial litigation to judicial review. This attitude was justified because:


 * "[m]atters of public policy are the 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.”

The Court of Appeal in Jeyaretnam then linked the last-mentioned quote in Vellama to the green light-approach to judicial review in Singapore. At an extra-judicial address at the Singapore Management University in 2010, former Chief Justice Chan Sek Keong advocated a green-light approach, which focuses on “seek[ing] good government through the political process and public avenues rather than redress[ing] bad government through the courts.” This was compared with the red-light approach adopted in the UK, where the courts appear to be constantly locked in combat with the Executive and function as a check on the latter’s administrative powers.

CJ Chan noted that the different approaches adopted by the UK and Singapore led to the difference in doctrines adopted by each jurisdiction with regard to the law of standing. CJ Chan further suggested that:


 * "...the courts can play their role in promoting the public interest by applying a more discriminating test of locus standi to balance the rights of the individual and the rights of the state in the implementation of sound policies in a lawful manner.”

The Court of Appeal in the present case agreed with CJ Chan’s view and held that the green-light approach must form the backdrop for the evaluation of rules on standing that Singapore inherited from England.

Public interest litigation
The Court of Appeal distinguished the present case from Tan Eng Hong and Vellama because it involved neither a public nor private right. Thus it did not fall within any of the Boyce exceptions.

In Tan Eng Hong, the applicant was alleging that his private constitutional rights had been violated. This fell within the first of the Boyce exceptions. Similarly, in Vellama, the applicant was relying on her public right as a voter of a constituency without a Member of Parliament to seek a declaration on the proper construction of Article 49 of the Singapore Constitution.

Turning to the present case, although Jeyaretnam’s argument was that the Singapore government and/or the Monetary Authority of Singapore had breached their public duties by violating Article 144 of the Singapore Constitution, he could not assert any rights – whether public or private – on which he could bring the action to sue for the breach. Instead, the court found that he was bringing his claim solely in the public interest. The court continued to discuss the applicable law on standing when an application for leave is brought solely in the public interest.

No rights-duties correlation
To address the issue of when an applicant has the standing to bring a claim purely in the public interest, the Court of Appeal considered the relationship between rights and duties in public law.

Under the classic Hohfeldian conception of rights and duties, rights and duties were taken as correlative legal principles, such that “[w]hen a right is invaded, a duty is violated”. While this generally holds true in private law, the Court of Appeal took the view that the correlation breaks down in public law. The court endorsed T R S Allan’s observation that even though public authorities have a duty to observe the law, “it hardly follows that every official action or decision is appropriately subject to judicial review.” Citing Bamsworth, the court noted that many hurdles stand between a litigant’s remedy and a public authority’s wrongdoing – the applicant has to establish grounds of review and may be hampered by the court’s discretionary denial of remedies.

Functions of judicial review
The court took the view that the primary function of judicial review should be to restrict the exercise of public power where a person’s individual liberties or rights are intruded upon (the “protection of the individual” view), rather than to ensure that public bodies act properly in a legal sense (the “public interest” view).

The court acknowledged that a contrary viewpoint had been taken in the English case of R v Somerset County Council, ex parte Dixon ("Dixon"). Sedley J stated that public law is, at base, concerned with misuses of public power rather than the invasion of rights, so that leave may be granted to an applicant with no particular interest in the issue or outcome as long as the application is not brought with an ill motive. Nevertheless, the Court of Appeal in Jeyaretnam advocated the need to treat this red-light approach to public law with caution. It was preferable to disallow members of the public from calling upon the courts to review every decision made by public authorities for two reasons. First, it is pragmatic to minimise the disruptiveness brought by vexatious claims to the functioning of public authorities. Second, such limitation of the public’s ability to call for judicial review is consonant with the spirit of Singapore’s judicial system. The Court of Appeal in Jeyaretnam then held that courts should only be concerned with individuals’ rights and interests, and not matters of public policy, which are to be addressed through proper political processes. Consequently, parties should not be allowed to challenge the merits of a policy decision through judicial review. They can only bring claims of legality to the courts.

Legality not merits
In line with its holding that parties should not be allowed to challenge the merits of a policy decision through judicial review, the Court of Appeal held that if neither of the Boyce exceptions are applicable, the court “should not engage in questions relating to the exercise of management powers by public bodies”. In the present case, Jeyaretnam’s case essentially alluded to an insinuation that the loan in question was of dubious utility to Singapore, and hence should be reviewed. This would require the court to rule on the merits of the public authorities’ decision, i.e. the wisdom of the granting of the loan, an exercise the courts ought not to undertake. Nevertheless, the Court of Appeal held that courts are concerned with the legality of public authorities’ actions or omissions. This stems from their role as the guardian of the rule of law, which makes it “unthinkable that citizens would have no recourse for bringing claims against unlawful conduct by public bodies where there has been an obvious and flagrant disregard for the law”. Hence, citing R v IRC, the court suggested that it was possible for an applicant whose rights are not directly affected to have standing to bring an action in public law if the breach of duty by a public authority involves “exceptionally grave or widespread illegality”. The Court of Appeal added that this did not necessarily mean that citizens would be entitled to ask the court to intervene in every case where public authorities had acted unlawfully. Relevant factors to consider in deciding whether judicial review is appropriate would be: After examining the statutory scheme underlying Article 144, the court found that Parliament probably did not intend for persons such as Jeyaretnam to have standing to ask for judicial review of a loan or guarantee by enacting Article 144. The President could also have vetoed the loan if he suspected impropriety; alternatively, he could have referred the question to a constitutional tribunal pursuant to Article 100 of the Constitution. In fact, Jeyaretnam had brought up his concern about the loan to the President, and the loan was also a matter brought up in Parliament. However, neither had questioned the propriety of the loan. Further, since the nature of the issue was entirely political, it ought to be resolved through political processes rather than through the courts. As a result, the applicant had no standing.
 * 1) the gravity of the breach; and
 * 2) the statutory scheme of things in relation to which the breach is alleged to have occurred.

Egregious breach and special damages
The Court of Appeal also noted that where public rights are interfered with, the requirement of “special damage” can be satisfied in “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, this is a narrow avenue that addresses only very grave and serious breaches of legality. It will not be open for petty claims against breaches of just any public body or servant.

Wariness of public interest litigation
The court pre-emptively clarified that it would be wary of any surge in public interest litigation because the concept of public interest had the intrinsic risk of running amok.

Affirmation of the Boyce test
The court also acknowledged that there had been criticisms about how the Singapore courts have weighed both the applicants’ rights and the legality of public bodies’ actions in determining locus standi. However, the court affirmed that the principles in Boyce, which represented the view that individuals must have sufficient stakes in order to have standing, remains the predominant test for most cases.

Prescriptive weight of the “green-light” approach
In a subsequent commentary, it was observed that the decision in Jeyaretnam (CA) had elevated the concept of the “green-light” approach from being a mere descriptive model to a model with prescriptive weight in the Singapore context. This, in turn, has further implications for the court’s role in Singapore public law, and consequently, for the law on standing in Singapore. To elucidate such implications, the word “right” was dichotomised to bear two different meanings.

Dual meaning of "right"
In the first sense, the word “right” refers to a primary right – for instance, a right to be represented in Parliament or a right against discrimination. In the second sense, the word “right” refers to a secondary right to seek a court remedy to enforce a primary right. While primary rights are a matter of substantive constitutional law, secondary rights deal with procedural matters, which are influenced by the issue of whether the red-light approach or the green-light approach predominates in public law. The importance of a distinction between primary and secondary rights can be seen in the comparison made by the Court of Appeal in Jeyaretnam (CA) between Tan Eng Hong and Vellama on the one hand, and Jeyaretnam (CA) on the other. When the court in Jeyaretnam (CA) pointed out that the applicant in Tan Eng Hong was concerned with his private constitutional rights, it was referring to that applicant’s primary rights. In contrast, when the court in Jeyaretnam (CA) observed that the applicant in Vellama had a “public right … to seek a declaration on the proper construction of Article 49 of the Constitution”, the court was referring to a “right” in the secondary sense. Nevertheless, the court in Vellama was still competent to rule on the substantive merits of the applicant’s claim because the applicant also had a primary public right, ie, the right to be represented in Parliament. On the other hand, in Jeyaretnam (CA), the court distinguished the present case from Vellama and Tan Eng Hong because Jeyaretnam had neither a public nor a private right. Hence, the court held that the claim was brought solely in the public interest. This holding has been criticised for its lack of clarity – “surely a public right can be vindicated for the sake of the public interest, and vindication of a private right can set a precedent which benefits the public interest.” Instead, it was suggested that what the court meant by “public interest” was, more specifically, “a ... general concern for public administration rather than a specific instance of public maladministration”. It has been further suggested that, strictly speaking, Jeyaretnam had an underlying primary right (i.e. “a general right of citizens to have public funds managed judiciously”) but no secondary right to enforce this primary right (in Vellama, the applicant also lacked standing because of the absence of such a secondary right). However, unlike Vellama, the court in Jeyaretnam (CA) suggested that the primary right was existent, but was non-justiciable because of its political character

Reconcilability of the green-light approach, Dixon and the actio popularis
It was also suggested that the green-light approach prescribed in Jeyaretnam can be reconciled with both the view in Dixon and the Roman-style actio popularis. In Dixon, it had been held that in the majority of cases, the applicant would have to demonstrate that he/she is not a mere busybody. In the Roman actio popularis, the applicant was not automatically entitled to his application: “sometimes special damage was needed, or … it was only a last resort if nobody with a specific interest sued.” Similarly, a secondary right of enforceability may be invoked after consideration of the “gravity of the public authority’s breach”.