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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.

Justiciability

Introduction

A fundamental constitutional principle under the rule of law is the separation of powers. It is settled law that the courts in Singapore by virtue of Article 93 of the Constitution of Singapore “has jurisdiction to adjudicate on every legal dispute on a subject matter in respect of which Parliament has conferred jurisdiction on it, including any constitutional dispute between the State and an individual.”

While it is the general rule that all legal issues are by default justiciable, the Singapore courts have “developed an internal doctrine of self-imposed judicial restraint” with regards to certain issues. The Singapore High Court in Lee Hsien Loong v Review Publishing held in obiter dicta that “there are clearly provinces of executive decision-making that are, and should be, immune from judicial review.” An issue which is immune from judicial review is known as a “non-justiciable” issue both in Administrative law and Constitutional law.

In the case of Lee Hsien Loong v Review Publishing, the Singapore High Court identified four criteria to identify the areas that are non-justiciable.

Access to material

Essentially, the court held that justiciability depends on the subject matter that is in question and not the source of power. Where it is the executive that has access to the best materials available to resolve an issue, its views should be regarded as highly persuasive, if not decisive.

The courts will usually find matters of national security and defence non-justiciable due to the nature of the decision making process. Such decisions often require sensitive information relating to military intelligence and diplomatic communications. The courts do not have access to such information; to substitute its decisions for the executive’s in these circumstances would be clearly inappropriate.

Weighing of governmental policies

Judges are also deemed to be ill-equipped to deal with situations where the intricate balancing of various competing policy considerations is required. Judges possess limited training, experience and access to materials in these areas and the courts should shy away from reviewing merits of government policy.

Furthermore, in a Westminster democracy such as Singapore, the executive branch of government directs government policy via Parliament. They are ultimately accountable to voters through regular elections. If un-elected judges take it upon themselves to weigh the merits of democratically decided policies instead, it would arguably amount to a usurpation of legislative and executive powers and also going beyond the constitutional powers of the judiciary.

Embarrassment for other branch of government

The courts are also to abstain from situations where a judicial pronouncement could embarrass some other branch of government or tie its hands in the conduct of affairs traditionally regarded as falling within its purview.

Strong and efficient governance is central to Singapore’s success. Furthermore, Singapore is an Asian society where great value is placed on face and dignity. Chan Sek Keong CJ , spoke extra-judicially in a speech to Singapore Management University law students explaining that the judiciary in Singapore prefers a “green-light” approach to a “red-light” one. Under the “green-light” approach, the courts “play a supporting role”, and places high levels of trust in political leaders. It is therefore important not to be too aggressive or antagonistic in judicial review, especially where a decision to review a certain case could lead to unnecessary embarrassment for government. This could lead to defensiveness in the executive where resources may be channeled to defending the integrity and legality of its decisions rather than on the day-to-day business of proper governance.

Prerogative power of the Executive and Legislature

The courts also recognises that there are areas of prerogative power that the democratically elected Executive and Legislature are entrusted to take charge of, and, in this regard, it is to the electorate, and not the Judiciary, that the Executive and Legislature are ultimately accountable.

The idea of prerogative power stems historically from English common law. The reigning monarch, and by extension, the Crown’s ministers, would preserve certain powers which are seen as the “royal prerogative”. These powers include the power to dissolve parliament and the declaration of war. Such powers are traditionally held to be beyond the purview of the judiciary.

Due to Singapore’s colonial past, Singapore inherited the English legal system, and some prerogative powers are preserved and utilised by the government, even though Singapore does not have a reigning monarch. In such areas, the courts abide by the traditional position of non-justiciability.

Justiciability in reviewing Legislation vs Executive action

In Singapore, judicial review on the unconstitutionality of legislation has rarely been brought to court. To date, most cases involve judicial review on the legality of executive action. Even in the few cases on the judicial review of legislation, such as the 2012 case of Tan Eng Hong v AG, the Singapore courts have yet to strike any such applications down on account of non-justiciability. It remains to be seen whether the court would apply a different standard of justiciability when reviewing legislation.

Non-justiciability in common law

Matters of “high policy”

Matters of “high policy” was identified in the case of Lee Hsien Loong v Review Publishing to include matters such as the conduct of foreign affairs, the making of treaties, matters pertaining to war, the deployment of armed forces and issues pertaining to national defence. Cases concerning international boundary disputes and the recognition of foreign governments are also identified to fall within this category of non-justiciability.

Matters of national security

The Court of Appeal is the highest court in Singapore. It performs only appellate functions, and consists of 3 Justices of Appeal and the Chief Justice of Singapore.

Issues of national security are non-justiciable in Singapore law. This is evident in many of Singapore’s cases. The prime case to establish this is that of Chan Hiang Leng Colin v Minister for Information and the Arts which explicitly stated that it is settled law that issues of national security are not justiciable. The court in that case highlighted that the issue on whether there should be a ban on the publications by the Jehovah’s Witnesses was not justiciable. This was because the publications were essential for the profession, practice and propagation of beliefs of the Jehovah’s Witnesses and a central tenet of this is the refusal to do National Service. Therefore, this was akin to urging the court review, in a full hearing, the issue of Jehovah’s Witnesses’ refusal to do National Service. The Singapore Court of Appeal reiterated their stand in Chng Suan Tze v Minister for Home Affairs stating, “it is clear that where a decision is based on considerations of national security, judicial review of that decision would be precluded”.

The case of Chng Suan Tze v Minister for Home Affairs showed how Singapore courts seem to follow the UK’s approach to treating issues of national security. In the UK, the courts take the stance that issues of national security are non-justiciable because the executive alone has access to the necessary information and the judicial process is unsuitable for reaching decisions on national security.

Foreign affairs

The area of foreign affairs is another matter of “high policy”. Singapore courts generally abstain from reviewing executive decisions in this area, unless the decision was made in bad faith. In the case of CAA v Singapore Airlines which dealt with the question of the recognition of sovereign status, the Singapore Court of Appeal stated clearly that it is “not for the courts to get themselves involved in international relations”. The courts are ill-equipped to deal with such matters and should there be any ambiguity in the decision made by the executive, the proper recourse would be for the courts to seek further clarification and not to second-guess the executive or to determine the answer through a separate, independent inquiry.

In the UK, it is settled law that prerogative powers of the executive on matters of high policy such as the “making of treaties, making war, dissolving parliament, mobilising the Armed Forces” are not justiciable. This principle was endorsed in the recent UK case of R (on an application of Gentle) v Prime Minister, and referred to in Lee Hsien Loong v Review Publishing, where Sir Anthony Clarke MR stated that “the starting point is the proposition that issues relating to the conduct of international relations and military operations outside the United Kingdom are not justiciable (as) constitutionally such matters lie within the exclusive prerogative of the executive and … they are governed by international and not domestic law”.

Executive as the final arbiter

Judicial review will be excluded where the legislature has made it clear that the question is reserved to the executive to answer. An illustrative case is that of CAA v Singapore Airlines where the Singapore Parliament had by section 18 of the State Immunity Act specifically conferred on the executive the power to make a conclusive determination whether a State is recognised for the purposes of the Act. Hence the matter is wholly within the domain of the executive and it is essential that the courts do not act in a manner that is inconsistent with the approach of the executive.

Interpretation of international treaties

Currently, there are no Singapore cases illustrating the court’s approach to the interpretation of international treaties, although the case of Lee Hsien Loong v Review Publishing does identify this area to be one of which the court will “no doubt find unjusticiable”.

Nevertheless, reference may be made to the UK case of R (on the application of Campaign for Nuclear Disarmament) v Prime Minister where the English High Court refused judicial review in the context of construing United Nations Security Council Resolution 1441 primarily on the basis that the court should not declare the meaning of an international instrument that operates purely on the plane of international law. It was held that the courts may only pronounce on an issue of international law where it is necessary to do so in order to determine rights and obligations under domestic law. Domestic courts are only responsible for the lawful exercise of public power with regard to domestic law; they are not charged with policing the UK’s conduct on the international plane, which should be left to the International Court of Justice.

Exceptions to non-justiciability at common law

In Singapore, following the case of Lee Hsien Loong v Review Publishing, the correct approach is “not to assume a highly rigid and categorical approach to deciding which cases are not judiciable”. This is consistent with the position adopted by the English Courts. Most notably, as per Laws LJ in the case of R v Environment Agency, “no matter how grave the policy issues involved, the courts will be alert to see that no use of power exceeds its proper constitutional bounds”. It was also stated that the intensity of judicial review will depend upon the context which the issue arises and upon common sense. Therefore, it is pertinent to note that not every matter which on its face appears to be non-justiciable is precluded from judicial review.

Wednesbury Unreasonableness

(Refer to main article for a more detailed explanation)

One of the exceptions to non-justiciability would be where executive actions are found to be Wednesbury unreasonable. This occurs when a public authority makes a decision that is “so absurd that no sensible person could ever dream that it lay within the powers of the authority” as first evinced in the English case of Associated Provincial Picture Houses v Wednesbury Corporation (1947) 1 KB 223. In such a case, the court is not precluded from reviewing the legality of the decision. Nonetheless, it should be noted that Singapore courts will be slow to infer a case of Wednesbury unreasonableness; the courts tend to defer to the executive where public interest is paramount.

Issues which are justiciable only upon closer scrutiny

An exception to non-justiciability is where an issue appears to be prima facie non-justiciable, but on closer scrutiny becomes clear that it is something the courts may well find justiciable. This was enunciated in the case of Lee Hsien Loong v Review publishing citing the Australian Federal Court's case of Humane Society. An instance of this exception is where a pure question of law can be isolated from what initially appears to be a non-justiciable area.

Pleas in defence, not pleas in bar

Where cases involve traditional areas of non-justiciability such as matters of national security, the courts have held mere assertions are not “pleas in bar” but are only pleas in defence. That is, such a plea would only succeed if there is evidence that the challenged decision was in fact founded on national security grounds. This principle was noted by Lord Fraser in the UK case of Council of Civil Service Unions v Minister for the Civil Service (more commonly know as the GCHQ case) and endorsed by the Singapore Court of Appeal in Chng Suan Tze v Minister for Home Affairs and others.

Bad faith

Another exception to matters considered as non-justiciable is that of bad faith on the part of decision-makers. It was established in the UK case of R v Environment Agency, that “judicial review remains available” as a remedy for “actual bad faith on the parts of ministers making decisions of high policy”. A similar position has been adopted in Singapore as seen in the case of Law Society of Singapore v Tan Guat Neo Phyllis. The High Court found that the discretionary power to prosecute, as conferred by the Singapore Constitution, is not absolute or unfettered. Such power is only exempted from judicial review if it was not exercised in bad faith for an extraneous purpose and is not used to contravene constitutional rights. Where these two aspects of the exercise of prosecutorial discretion are not fulfilled, Courts have an obligation to intervene and provide a constitutional remedy through the means of judicial review.

Constitutional and statutory limits to justiciability

In Singapore, the non-justiciability of certain issues has been codified in its written constitution as well as in statutory ouster clauses.

Non-justiciability under the Singapore Constitution

Under Article 149(1) of the Singapore Constitution , any law which is designed to stop or prevent actions falling under one of five listed categories is deemed to be valid, notwithstanding that it may be inconsistent with any constitutional rights. The five categories consist of actions which –

1. cause organized violence, or the substantial fear of organized violence, against persons or property;

2. excite disaffection against the President or the Government;

3. promote racial ill-will and hostility likely to cause violence;

4. procure the alteration by unlawful means of anything by law established; or

5. are prejudicial to the security of Singapore.

In the wake of the local case of Chng Suan Tze, Article 149(3) was inserted by the Singapore Parliament into the Constitution in 1989 to extend the non-justiciability of the five categories in Article 149(1) to executive actions as well.

Non-justiciability under ordinary statutes

Certain statutes also contain ouster clauses, which attempt to render executive decisions non-justiciable by expressly precluding any form of judicial review. A prominent example of this would be s8B(2) of the Internal Security Act (commonly known as the ISA) which precludes judicial review of any executive decision made under the provisions of the ISA, except on grounds of procedural impropriety.

While the UK courts in the case of Anisminic v Foreign Compensation Commission have declared that ouster clauses are not entirely effective in precluding judicial review, the Singapore courts have declined to apply this principle to the ISA ouster clause, acknowledging that executive actions under the ISA are not a justiciable matter.

The Singapore courts have also held that common law exceptions to non-justiciability such as bad faith would not apply to the ISA, as allowing the court to apply such exceptions would be contrary to the legislative scheme intended by the Singapore Parliament.

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