User:Sgconlaw/Threshold issues in Singapore constitutional law

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Standing

Before an applicant for judicial review in Constitutional law is permitted to bring a dispute before the court, the applicant must first satisfy the court that he or she has sufficient standing or locus standi (standing (law)). The rationale is to turn away “simple cases” which are groundless or hopeless, and to prevent “wasteful use of judicial time”.

In Singapore, most applicants for judicial review in constitutional law seek a declaration. This is where the courts declare that the legislation or executive action in question is unconstitutional based on the Constitution of Singapore . A declaration has the effect of stating the law based on the facts before the court, thereby clarifying the legal position between the parties to the action. However, a declaration is not a coercive remedy, as there is no direct method of enforcement by sanctions.

In contrast, applications for prerogative orders are more commonly sought where judicial review of administrative action is concerned. These include mandatory orders (mandamus), quashing orders (certiorari), prohibitory orders (prohibition) as well as a writ of habeas corpus.

Due to the dearth of cases relating to prerogative orders for judicial review in constitutional law, it is unclear what the requirements for obtaining such orders are. While comparisons may be drawn to the requirements for obtaining a prerogative order in administrative review cases, what the courts will actually decide is still an open question.

In Singapore, while there is an absence of constitutional case that seeks prerogative orders as of date, dicta in the case of Re Lim Chor Pee suggests that the requirements for prerogative orders and declarations are the same.

Personal and Representative Standing

Standing may be categorised into personal standing and representative standing. Personal standing is concerned with an applicant that is directly affected by a decision of a public body or has a personal interest in it. On the other hand, representative standing arises where the applicant is not directly affected by the decision, but purports to represent persons who are adversely affected by the decision. To date, there is no local case law for representative standing for constitutional matters.

Unlike Singapore, there have been US cases on representative standing in judicial review. In Eisenstadt v Baird, the court held that the applicant Baird had standing to assert the rights of unmarried persons who were denied access to contraceptives. This was because their ability to obtain them will be materially impaired by enforcement of the statute. (Beef up this part)

Scope of fundamental liberty

The first issue related to standing is to identify if the fundamental liberty in question purports to protect all persons or only Singapore citizens. Accordingly, the fundamental liberty that the applicant has alleged to be infringed must in fact be one that is guaranteed to him.

Whether the fundamental liberty in question is enjoyed by all persons or only Singapore citizens turns on the wording of the Constitution. This is illustrated in the case of Review Publishing Co Ltd v Lee Hsien Loong where the court held that the constitutional free speech embodied in Article 14 of the Constitution of Singapore is conferred on Singaporeans only, based on the wording of Article 14(1)(a).

(SHOULD I LIST OUT WHICH ARE THE ONES MEANT FOR CITIZENS ONLY?) (THINK OF WHERE TO ADD IN PART THAT MERE CITIZENSHIP DOES NOT MEAN DEFINITELY HAVE LOCUS STANDI!! Details in google docs)

Once it is established that the applicant is indeed guaranteed by the fundamental liberty provision in question, the applicant then has to show that he or she has sufficient standing based on the test expounded in Karaha Bodas Co LLC v Pertamina Energy Trading Ltd (Karaha Bodas).

The Karaha Bhodas Test

The test for locus standi for declaratory relief is established in the local case of Karaha Bodas. This test was confirmed to be applicable to declarations for constitutional matters in the recent Court of Appeal case of Tan Eng Hong v AG,. The Karaha Bodas test provides that the following three elements should be met in order for an applicant to possess locus standi to bring an action for a declaration:

1. Firstly, the applicant must have a “real interest” in bringing the action;
2. Secondly, there must be a “real controversy” between the parties to the action for the court to resolve;; and
3. Thirdly, the declaration must relate to a right which is personal to the applicant and which is enforceable against an adverse party to the litigation.

Applicant Must Have A Real Interest

For an applicant to prove real interest in bringing the action, sufficient interest must be proven. In Tan Eng Hong,it was held the question of “sufficient interest” must be judged in relation to the rights which are the subject matter of the application. Given the importance of constitutional rights, a citizen will prima facie have a “sufficient interest to see that his constitutional rights are not violated”.

The courts have also rejected the academic opinions of Kevin Y L Tan & Thio Li-ann that “[w]here constitutionally-guaranteed liberties are at stake, locus standi is established without the need to show sufficiency of interest”. Sufficiency of interest still needs to be shown, but this is prima facie made out once there is a violation of a constitutional right.

(Add in standards of how to apply test; relevant/ irrelevant considerations! Dorothy! SHANICE NEED YOUR HELP HERE!)

Real Controversy

One of the requirements for the grant of declaratory relief is that there must be a real controversy for the courts to resolve. In other words, it cannot relate to an an abstract or hypothetical question. (INSERT KARAHA!!!)However, the requirement of a real controversy is not a jurisdictional requirement, and the courts may still grant standing even if this requirement is not fulfilled. In Tan Eng Hong, Justice VK Rajah opined that "There is, undoubtedly, much value in having judicial determinations in appropriate cases on debatable points of law of public interest, not just for the benefit of the parties concerned, but also (and primarily) for the benefit of the public. Clear judicial pronouncements on the law helps to ensure that the rule of law is upheld".This seems to suggest that in certain circumstances, the courts may choose to grant a declaration in abstract where it is in public interest to do so.

In the US, one of the conditions for personal standing is that it must be likely, as opposed to merely speculative, that a favorable court decision will redress the injury. (cite case)

Violation Of A Personal Right

(MOVE CITIZENSHIP UP!)The C.A. in Tan Eng Hong established that because “every constitutional right is a personal right, demonstrating that a constitutional right has been violated will suffice”. However, the mere fact of citizenship in itself does not satisfy the standing requirement for constitutional challenges. Instead, an applicant must demonstrate a violation of his constitutional rights before locus standi can be granted, to prevent “mere busybodies”, whose rights are not affected, from being granted standing to launch unmeritorious constitutional challenges. Therefore, underlying rationale for the restrictive test is a fear that an over-lax standing rule would open the floodgates to busybodies.

In Chan Hiang Leng Colin v. Ministry for Information and the Arts, Karthigesu JA held that “A citizen should not have to wait until he is prosecuted before he may assert his constitutional rights”. This was affirmed by the CA in Tan Eng Hong, where the courts rejected the Attorney General's contention that that there must be a subsisting prosecution under an allegedly unconstitutional law before it can be asserted that there was a violation of constitutional rights. Violations of constitutional rights may occur not only at the point in time when an accused person is prosecuted under an allegedly unconstitutional law, but also when a person is arrested and/or detained and/or charged under an allegedly unconstitutional law. Furthermore, “[t]he spectre of future prosecution” under an allegedly unconstitutional law could be sufficient to establish a violation of constitutional rights if the applicant was “facing a real and credible threat of prosecution”. This is because an applicant waiting to see whether a prosecution will be brought against him and the uncertainty in itself can be said to be a form of suffering.

It was further held that 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 no such case has ever been brought to the attention of the courts here. Keeping in mind the need for a balance, VK Rajah JA stressed that each case must turn on its own facts, and courts must remain mindful that lax standing rules could “seriously curtail the efficiency of the Executive in practicing good governance.” Noted academic Prof Thio critiques such an expansive reading of what constitutes a violation of constitutional rights. This is because to challenge what might be an existence of an unconstitutional law on the statute books is to engage in abstract review, as no one is directly affected by a law which is not implemented. There being no personal interest at stake, the only rationale must be to enforce the constitutional order as a citizen, after the public interest model of standing. It thus follows that broad standing rules must avail applicants to challenge the constitutionality of such laws, as no one is aggrieved and everyone is potentially aggrieved.

See also

• Law of Singapore
• Supreme Court of Singapore

Further reading

Articles and websites

• Pillai, K. Muralidharan; Luo, Qinghua (2009), "Revisiting the High Court's Revisionary Jurisdiction to Enhance Sentences in Criminal Cases", Singapore Academy of Law Journal, 21: 135–160.
• Singapore court system, Law Society of Singapore, retrieved 26 December 2009.
• Tan, Eugene; Chan, Gary (13 April 2009), "The Judiciary", The Singapore Legal System, Singapore Academy of Law, retrieved 26 December 2009.

Books

• Chan, Helena H[ui-]M[eng] (1995), "The Judiciary", The Legal System of Singapore, Singapore: Butterworths Asia, pp. 41–68, ISBN 978-0-409-99789-7 (pbk.) {{citation}}: Check |isbn= value: invalid character (help).
• Kwek, Mean Luck [et al.], eds. (2006), Hall of Justice: Supreme Court Singapore, Singapore: Supreme Court of Singapore, ISBN 978-981-05-5356-2 {{citation}}: |first= has generic name (help)CS1 maint: multiple names: authors list (link).
• Tan, Kevin Y[ew] L[ee] (2011), "Without Fear or Favour: The Judiciary", An Introduction to Singapore's Constitution (rev. ed.), Singapore: Talisman Publishing, pp. 107–131, ISBN 978-981-08-6456-9 (pbk.).
• Tan, Kevin Y[ew] L[ee]; Thio, Li-ann (2010), "The Judiciary", Constitutional Law in Malaysia and Singapore (3rd ed.), Singapore: LexisNexis, pp. 505–630, ISBN 978-981-236-795-2 (hbk.).
• Thian, Yee Sze; Chong, Chin Chin; Lim, Sharon (2002), In Session: Supreme Court Singapore: The Building, her Heritage and her People, Singapore: Supreme Court of Singapore, ISBN 978-981-047-671-7.

External links

• Official website of the Parliament of Singapore
• Official website of the Supreme Court of Singapore
• Singapore Statutes Online