User:Sgconlaw/Jeyaretnam Kenneth Andrew v. Attorney-General

Sgconlaw/Jeyaretnam Kenneth Andrew v. Attorney-General
This case was heard in both divisions of the Supreme Court of Singapore: the High Court and the Court of Appeal.
Court	High Court of Singapore and Court of Appeal of Singapore
Full case name	Jeyaretnam Kenneth Andrew v. Attorney-General
Decided	22 October 2012 (H.C.); 31 October 2013 (C.A.)
Citation(s)	[2013] 1 S.L.R. 619, H.C.; [2014] 1 S.L.R. 345, C.A.
Case history
Prior action(s)	Jeyaretnam Kenneth Andrew v. Attorney-General [2013] 1 S.L.R. 619, H.C.
Related action(s)	Jeyaretnam Kenneth Andrew v. Attorney-General [2013] 1 S.L.R. 619, H.C.
Court membership
Judge(s) sitting	Tan Lee Meng J. (H.C.); Chao Hick Tin J.A., Andrew Phang Boon Leong J.A., and Quentin Loh J. (C.A.)
Case opinions
The granting of a loan by the Government of Singapore does not fall within the ambit of Article 144 of the Constitution of Singapore.

Jeyaretnam Kenneth Andrew v. Attorney-General is a Singapore constitutional law case that concerns (1) the interpretation of Article 144 of the Constitution of the Republic of Singapore; and (2) the issue of standing in bringing an action for judicial review in public law. The case 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, one of the opposition political parties in Singapore, 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. On that basis, he sought leave to apply for prerogative orders and declarations against the Government and/or the Monetary Authority of Singapore in relation to the Loan commitment. 

In the High Court, with respect to the issue of Article 144's interpretation, Jeyaretnam argued that Article 144(1) should be given a literal and dictionary reading as opposed to a purposive interpretation. This would have the effect of preventing the Government from giving a loan without obtaining the prior approval of the Parliament and the concurrence of the President. Tan Lee Meng J ("Tan J") dismissed Jeyaretnam’s case and held that Article 144(1) should be given a purposive interpretation. On that basis, the Government’s act of giving a loan to the International Monetary Fund does not fall within the ambit of Article 144(1). For completeness' sake, the High Court went on to consider whether Jeyaretnam had standing to bring the action. Holding that the case concerned a public right, the High Court decided that the applicant lacked standing because he failed to prove that he had suffered special damage resulting from the public act challenged.

Upon appeal, the Court of Appeal concurred with the High Court’s interpretation of Article 144. The Court of Appeal further found that the Loan commitment could not be compared to a contingent liability or guarantee despite Jeyaretnam’s arguments. It ruled that the amount of risk involved in holding an asset does not change its nature from an asset to a liability, and that a guarantee was also “distinct and separate” from a loan commitment. The Court of Appeal noted that Jeyaretnam's application for leave failed because he failed to raise a prima facie case of reasonable suspicion; hence, it was once again unnecessary to determine on the issue of standing. Nonetheless, the Court of Appeal went on to scrutinise Jeyaretnam's locus standi because of the sheer importance of the issue. The court first observed that Jeyaretnam's action involved neither a private right nor a public right - it was a claim brought purely in the public's interests. Following this finding, the Court of Appeal examined the statutory scheme underlying Article 144 and held that Parliament did not intend for ordinary citizens like Jeyaretnam to have standing. The loan was a purely political issue and should not be subject to judicial review. Jeyaretnam's lack of standing provided an additional reason for the Court of Appeal to dismiss Jeyaretnam’s appeal, and deny his application for leave to apply for prerogative orders.

Facts

Kenneth Andrew Jeyaretnam of the Reform Party. In this case, he sought leave to be granted for prerogative orders. Jeyaretnam is pictured here at a Reform Party rally at Speakers' Corner in 2011.

In order to support the international effort to provide the International Monetary Fund ("IMF") with sufficient resources to combat the Eurozone Financial Crisis, the Singapore Government had decided that Singapore, through the Monetary Authority of Singapore (“MAS”), would make a contingent loan of US$4 billion to the IMF (“Loan commitment”). The money would not come from the Government Budget, but from part of the Singapore’s Official Foreign Reserves (“OFR”). This is achieved by converting part of the foreign investment assets to a loan made to the IMF, which would still count towards the OFR. In effect, the OFR does not decrease even if the IMF were to draw down on the loan.

Jeyaretnam brought an application for judicial review to challenge the constitutionality of the Loan commitment. He claimed that the Loan commitment contravened Article 144 of the Constitution of the Republic of Singapore (“Constitution”), as the Government had not obtained the requisite Parliamentary and Presidential approvals before granting the Loan commitment.

Article 144 reads as follows:

Restriction on loans, guarantees, etc.

144.—(1) No guarantee or loan shall be given or raised by the Government —

(a) except under the authority of any resolution of Parliament with which the President concurs;

(b) under the authority of any law to which this paragraph applies unless the President concurs with the giving or raising of such guarantee or loan; or

(c) except under the authority of any other written law.

(2) The President, acting in his discretion, may withhold his assent to any Bill passed by Parliament providing, directly or indirectly, for the borrowing of money, the giving of any guarantee or the raising of any loan by the Government if, in the opinion of the President, the Bill is likely to draw on the reserves of the Government which were not accumulated by the Government during its current term of office.

(3) Clause (1)(b) shall apply to the following laws:

(a) the Asian Development Bank Act (Cap. 15);

(b) the Bretton Woods Agreements Act (Cap. 27)

(c) [Deleted by Act 27/2008 wef 01/01/2009]

(d) the External Loans Act (Cap. 102);

(e) the Financial Procedure Act (Cap. 109);

(f) the International Development Association Act (Cap. 144A);

(g) the International Finance Corporation Act (Cap. 144);

(h) the Jurong Town Corporation Act (Cap. 150); and

(i) the Loans (International Banks) Act (Cap. 164).

Jeyaretnam thus sought leave to make applications for the following prerogative orders under O 53 of the Rules of Court: a prohibiting order prohibiting the Government or the MAS from giving any loan or guarantee to the IMF except in accordance with Article 144; and/or a quashing order quashing the decision to make the loan for contravening Article 144.

Jeyaretnam further argued that if leave were granted for either or both of the above, he should also be granted leave to apply for a declaration that a loan or guarantee may not be raised or given by the Government or the MAS except in accordance with Article 144 and/or declaration that a loan commitment or guarantee may not be given by the Government or the MAS except in accordance with Article 144.

Decision of the High Court

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 declaration and prerogative orders sought by the applicant and specifically, whether Article 144(1) was intended to also apply to the giving of loans by the Government ("the Second Issue");

(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

For the first issue, both parties agreed that the subject matter of the proceedings was susceptible to judicial review.

In relation to the Second Issue, Jeyaretnam argued that Article 144(1) should be given a literal and dictionary reading as opposed to a purposive interpretation. He further contended that adopting a purposive interpretation would not be appropriate where the provision in question relates to the Executive’s accountability to the Legislature. In this vein, the Government should neither give nor raise any loan without obtaining the prior approval of the Parliament and the concurrence of the President.

The Attorney-General (“AG”), acting on behalf of the Singapore Government, argued that Article 144(1) should be given a purposive interpretation to reflect the intention of Parliament. Applying this reading, no guarantee shall be given and no loan shall be raised without the approval of the Parliament and the concurrence of the President.

In relation to the Third Issue, 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 (“Karaha Bodas”). Under this test, for an applicant to have standing, he has to prove that (the "Karaha Bodas test"):

(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.

Holding of the High Court

The Second Issue - Whether there was an arguable case in favour of granting the remedies

The High Court rejected Jeyaretnam's assertions and applied a purposive approach to the interpretation of Article 144. In the course of ascertaining Parliament's intention in relation to Article 144, the High Court had regard to various materials, which are examined below, and concluded that Article 144 does not apply to the giving of loans and consequently Parliament's approval and the President's concurrence are not required for the Loan commitment. On this basis, the High Court held that Jeyaretnam's application did not disclose a prima facie case of reasonable suspicion in favour of granting the remedies sought and dismissed his application for leave accordingly.

Purposive approach

Tan Lee Meng J rejected Jeyaretnam’s assertion that Article 144 should be construed literally and reiterated that section 9A(1) of the Interpretation Act mandates that all written law, which includes the Constitution are to be interpreted in a manner that would promote its underlying purpose or object.

This is supported by Article 2(9) of the Constitution, which states that the Interpretation Act applies in the interpretation of the Constitution. Also, in Constitutional Reference No. 1 of 1995, the Constitutional Tribunal stated that it would be wrong to interpret the Constitution literally if doing so does not give effect to Parliament’s intention underpinning the relevant provision.

Comparison between the Constitutional Amendment Bill, Explanatory Statement and the final version of Art 144(1)

Applying the purposive approach, Tan J looked at the relevant materials regarding the enactment of Article 144 and concluded that Article 144 only applies when the Government raises a loan or gives a guarantee, and not when it gives a loan.

In reaching the decision, Tan J looked at three documents, namely, (i) the Constitution of the Republic of Singapore (Amendment No 3) Bill 1990 (Bill 23 of 1990), (ii) the Explanatory Statement with respect to the Bill, and (iii) the amended Constitution, which incorporated Articles 144(1) & (2) in 1991.

From the Bill, Tan J looked at the order of the words “debt, guarantee or loan”, and noted that the words that followed were “incurred, given or raised”. When the arrangement in the Explanatory Statement was later changed to “loan, debt or guarantee”, the words that followed were correspondingly rearranged to “raised, incurred or given”. Tan J found that the linking of “loan” to “raised”, “debt” to “incurred”, and “guarantee” to “given” was indicative of Parliament’s intention that both the words “given” and “raised” in Article 144(1) were not meant to apply to “loan”.

Tan J’s conclusion on this point was buttressed by the fact that when Article 144 was enacted, the Select Committee recommended for the word “debt” to be removed from Article 144(1). This resulted in the corresponding deletion of the word “incurred”. Tan J found this confirmatory of Parliament’s intention to link the words, and that only the giving of guarantees and raising of loans by the Government fall within the ambit of Article 144.

Elected Presidency

In ascertaining the intention of Parliament, Tan J was of the view that Article 144 must be viewed in the context of the Elected Presidency since the former was enacted contemporaneously with the Elected Presidency scheme.

He justified his proposition by reference to the Explanatory Statement to the Constitution of the Republic of Singapore (Amendment No 3) Bill 1990 (Bill 23 of 1990), which provided that the purpose of the proposed constitutional amendments in relation to the Elected Presidency scheme was, inter alia, to “confer upon the elected President certain functions for the purpose of safeguarding the financial reserves of Singapore and the integrity of the Public Services...”

Tan J further examined the following documents and concluded that the Article 144 does not bar the giving of loans by the Government: (i) the Singapore Parliamentary Debates, Official Report (14 Jan 1998); (ii) the White Paper entitled Constitutional Amendments to Safeguard Financial Assets & Integrity of the Public Services (1988) ("the 1988 White Paper") and the White Paper entitled Safeguarding Financial Assets and the Integrity of the Public Services (“the 1990 White Paper”); and (iii) Article 144(2) of the Constitution.

Reference to the Singapore Parliamentary Debates

In 1998, the then AG Chan Sek Keong was tasked with advising the Government on the giving of a loan to a neighbouring country.

AG Chan opined that Article 144 was enacted to safeguard the nation’s accumulated reserves against profligate public spending by an irresponsible Government and the Elected Presidency scheme was established as the institution for this purpose. He further stated that the transactions that will be caught by Article 144are those that increase the financial liability of the Government or lead to a drain on its past reserves, such as the giving of a guarantee or the raising of a loan by the Government on public credit. Conversely, the giving of a loan by the Government creates a liability for the borrower and a corresponding asset for the Government. Accordingly, the act of giving a loan by the Government will not be caught by Article 144.

AG Chan’s opinion was endorsed by the Government during a parliamentary sittting in the same year.

The 1988 and 1990 White Papers

Tan J noted that paragraph 1 of the 1988 White Paper states in subsection (b) that if the Government wants to spend any reserves which it has not itself accumulated, it must obtain the concurrence of the Elected President.

He further noted that paragraph 42 of the 1990 White Paper states under the heading “Restriction on Loans, Guarantees, etc.” that the “Government may not raise loans, incur debts or give guarantees except with the concurrence of the President or under the authority of law…”

In both instances, no reference was made to any restrictions in relation to the giving of loans by the Government.

Article 144(2) of the Constitution

Article 144(2) states that the “... President, acting in his discretion, may withhold his assent to any Bill passed by Parliament providing, directly or indirectly, for the borrowing of money, the giving of any guarantee or the raising of any loan by the Government if, in the opinion of the President, the Bill is likely to drawn on the reserves of the Government which were not accumulated by the Government during its current term of office.”

The absence of any reference to the giving of any loan by the Government supports the conclusion that Article 144(1) is not engaged when the Government gives loans.

Legislation referred to in Article 144(3) supports the AG's interpretation of Art 144 of the Constitution

Article 144(3) listed a number of statutes that Article 144(1)(b) applied to. Amongst these, Tan J found that two of the statutes, namely the Financial Procedure Act ("FPA") and the Bretton Woods Agreements Act ("BWAA"), reinforced his conclusion that the giving of loans by the Government did not fall within the scope of Article 144.

The FPA was passed after Article 144 and Tan J noted that section 15(1) of the FPA concerned the giving of guarantees, while section 15(2) of the FPA governed the raising of loans. Further, upon examination of section 9 of the BWAA, Tan J found that the requirement of presidential concurrence for the raising of loans but not the giving of loans bolstered the view that Article 144 does not concern the Government’s giving of loans.

The reddendo singula singulis principle

Tan J also stated that by using one of the canons of statutory interpretation, reddendo singula singulis, the conclusion is that loans given by the Government will fall beyond the scope of Article 144. The canon states that where a complex sentence has more than one subject and more than one object, it may be the right construction to render each to each. Applying this to Article 144, the giving of loans by the Government falls outside its ambit.

The Third Issue - Whether the applicant has sufficient interest in the matter

Having dismissed the application on the grounds that the application did not disclose a prima facie case of reasonable suspicion in favour of granting the remedies, Tan J went on to deal with the Third Issue for completeness’ sake, concluding that Jeyaretnam lacked the requisite 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 included 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. A public right is defined as a right “held and vindicated by public authorities”. On the other hand, a private 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 next considered the law on standing that should apply. It first observed 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”) for the ruling 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 High Court also noted that after the decision in Tan Eng Hong, it would appear 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." The High Court further relied on Lim Kit Siang for the principle 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. The High Court first distinguished Colin Chan from the present case because Colin Chan was a case concerning private rights, whereas Article 144 of the Singapore Constitution is concerned with a public right.

The High Court then noted that in the case of Tan Eng Hong the court had decided that even where fundamental liberties are involved, it is necessary for an applicant to show a violation of a personal right to establish standing. 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).”

Treatment by subsequent cases

The High Court decision in Jeyaretnam has been cited by three cases (Chiu Teng @ Kallang Pte Ltd v Singapore Land Authority, Selvi d/o Narayanasamy v Attorney-General, and Manjit Singh s/o Kirpal Singh and another v Attorney-General) for the principle that an applicant seeking judicial review has to meet three conditions to be granted leave. These three conditions are that:

(a) the subject matter must be susceptible to judicial review;

(b) the applicant has sufficient interest (i.e., locus standi) in the matter; and

(c) the material before the court discloses an arguable or prima facie case of reasonable suspicion in favour of granting the remedies sought by the applicant.

Decision of the Court of Appeal

Parties' arguments

A picture of the 1999 Reprint of the Constitution of the Republic of Singapore. In this case, Court of Appeal concurred with the High Court's interpretation of Article 144 of the Constitution.

In Jeyaretnam's appeal against the High Court decision, besides reiterating the arguments he made to Tan J, he further submitted four new arguments with regard to the issue of the interpretation of Article 144 ("the interpretation issue").

First, he contended that the Government had given an implied guarantee to the MAS for the Loan commitment to the IMF. Second, he alleged that the MAS should not be treated as a separate vehicle from the Government. Third, he argued that the Loan commitment ought to be classified as a contingent liability rather than an asset. Fourth, Jeyaretnam likened the Loan commitment to a guarantee and drew a comparison between the Loan commitment and a call option.

As for the issue on standing ("the locus standi issue"), Jeyaretnam raised 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 has a personal right in order to be granted the requisite standing. Second, he argued that even if Tan Eng Hong was correctly decided, the court still has broad discretion to find that an applicant has standing to apply for declarations in a public law case, or at least 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.

The Court of Appeal agreed with the High Court’s decision regarding the interpretation of Article 144, and rejected Jeyaretnam’s arguments with regard to the law on standing. Accordingly, it dismissed Jeyaretnam’s appeal.

Holding of the Court of Appeal

The interpretation issue

Arrangement of words

On the issue of the interpretation of Article 144, the Court of Appeal agreed with the High Court’s reasoning as well as the finding that Parliament intended for Article 144 to refer only to the giving of guarantees and raising of loans, and not the giving of loans.

Jeyaretnam raised a new argument under this issue, contending that the words “given” or “raised” in Article 144(1) could both appropriately apply to a guarantee by citing the possibility of raising a letter of credit, which was “equivalent to a guarantee”. This would mean that it was not “inconceivable” to refer to the giving of a guarantee as raising a guarantee.

The Court of Appeal dismissed this argument, finding it “an abuse of the language” - the meaning of “raising a guarantee” is different from “giving a guarantee”. The Court of Appeal also found that a letter of credit is an entirely different financial instrument from a guarantee. Jeyaretnam conceded it was not common in financial jargon to raise a guarantee.

Implied guarantee

Jeyaretnam argued that the Government had violated Article 144 as it had given an implied guarantee to the MAS to reimburse the MAS for any loss suffered if the IMF were to be unable to repay the Loan. In his proposition, Jeyaretnam relied on section 38(1) of the Monetary Authority of Singapore Act (“MASA”), which states that the Government “shall be responsible for the payment of all moneys due by the Authority”.

The Court of Appeal held that Jeyaretnam’s reliance on section 38(1) of the MASA was flawed and incorrect. Section 38(1) refers to the payment of moneys due from the MAS to others, not vice versa. As the Loan commitment only involved the IMF owing moneys to the MAS, section 38(1) does not apply.

The Court of Appeal also agreed with the AG that an “implied guarantee” is a legal impossibility because Article 144(1) provides for three specific instances in which the Government can give a guarantee: if the guarantee was authorised by any resolution of the Parliament with the concurrence of the President under Article 144(1)(a); if the guarantee was made under the statutes listed in Article 144(3) with the concurrence of the President under Article 144(1)(b); or if any other written law authorises such a guarantee under Article 144(3). Hence, an implied guarantee is impossible given that a guarantee in itself can only arise in these specific instances.

The MAS as a separate vehicle

Jeyaretnam contended that the MAS was not a separate vehicle from the Government, given that it is a statutory corporation listed under the Fifth Schedule of the Constitution and its shares are fully owned by the Government.

The Court of Appeal dismissed this, as section 3(1) of the MASA states otherwise:

Establishment of Authority

3.—(1)  There shall be established an Authority to be called the Monetary Authority of Singapore which shall be a body corporate and shall have perpetual succession and may sue and be sued in its own name.

Contingent liability

Jeyaretnam contended that the loan should be classified as a contingent liability rather than an asset, based on the distinction Tan J drew between the Government’s promissory note to the IDA and the facts at hand. Tan J had dismissed Jeyaretnam’s reference to the Report of the Auditor-General for the Financial Year 2011/12 and explained that the Government’s promissory note to the IDA was a liability, and hence it required presidential assent, whereas the Loan commitment constituted an asset. Jeyaretnam leveraged on this explanation to liken the Loan commitment to a share option, which is classified as a contingent liability.

The contingent loan gives the IMF the right to draw down on the sum committed through the loan when necessary. He argued that the IMF is likely to draw down on the Loan commitment only when there is widespread breakdown in the global financial system and no other countries are willing to make loans to the IMF. Should a drawdown be effected, Singapore’s exposure in relation to the Loan would be a lot riskier than it currently stands.

He further argued that such a loan could not be a commercial asset since it would be given to support the global financial system in times of financial crisis. In this context, it is unlikely that the IMF will be able to repay the loans extended to it by the contributing countries and hence, notwithstanding the general accounting classification of loans as assets, the loan to the IMF constitutes, in substance, a liability. He proceeded to use the United States Federal Deposit Insurance Corporation’s Risk Management Manual of Examination Policies (“FDIC Manual”)’s inclusion of loan commitments under customers’ liabilities in Section 3.8 to bolster his point.

The Court of Appeal dismissed the argument for several reasons. It stated that accounting standards vary across countries and further explained that the amount of risk involved in holding an asset does not change its nature from an asset to a liability. Then, it also pointed out that Section 3.8 of the FDIC Manual refers specifically to the contingent liability of the customer, as financial institutions have to determine customers’ credit risks. That is distinguished from the present case, in which the IMF’s draw-downs would be a debt due from the IMF to the MAS and hence reflected as an asset of the MAS and not a liability.

“Like a guarantee”

Another argument put forth by Jeyaretnam was that the Loan commitment was like a guarantee. He argued that because both a loan commitment and a guarantee were both off-balance sheet lending commitments, they were “identical” in nature. As a result, the loan commitment should be treated in the same manner as a guarantee, and both Parliamentary and Presidential approval for the Loan commitment is required since Art 144 is triggered. Jeyaretnam relied on accounting practices referred to by the 2011 Annual Report of JPMorgan Chase & Co and the Bank of England’s Yellow Folder to reinforce his argument that guarantees and loan commitments were to be treated in the same manner.

Alternatively, Jeyaretnam argued that the Loan commitment and the giving of a call option were similar. No evidence was provided for this assertion.

The Court of Appeal dismissed both submissions. On the first contention, the judges stated that it was “obvious” that the nature of the two contractual arrangements was “distinct and separate”, albeit without elaboration. It also described the connection that Jeyaretnam sought to draw between the loan commitment and guarantee as “tenuous”. The Court of Appeal did not address the supporting evidence was made.

Regarding the second argument, the Court of Appeal disagreed that there was a similarity between the Loan commitment and the giving of a call option. They emphasised that there was a difference in the mechanisms, and defined a call option as a contractual arrangement to buy a right, but did not explain why that was “entirely distinct from the workings of a loan commitment”.

For these reasons, the appeal was dismissed.

The locus standi issue

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 had the requisite standing to bring the claim.

Introduction

Function of the law on standing

The Court of Appeal began by holding that the law on standing functioned as a procedural barrier against undeserving applications. The court distinguished private law actions from 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 law on standing prevents the same issue from being brought to court multiple times. Such frivolous litigation will amount to an abuse of process, and waste the court's time and public money. 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

The Court of Appeal next turned to an examination of the historical developments of the law on standing. 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.

As such, courts were unable to grant remedies where public authorities were clearly exceeding their statutory powers unless the Attorney-General was named as a plaintiff in an action. The English courts lamented that this approach was too narrow. Thus, in Boyce v Paddington Borough Council, two exceptions to this approach (“the Boyce test”) were developed so that an applicant would have standing to bring an action if: (a) he had a private right which was interfered with (“the first Boyce exception”); or (b) he had a public right and had suffered special damage peculiar to himself from the interference with the public right (“the second Boyce exception”). These exceptions were affirmed in the subsequent House of Lords’ decision in Gouriet v Union of Post Office Workers (“Gouriet”). In turn, Gouriet was endorsed 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.

Evolution of standing rules in Singapore

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 as 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." [emphasis in bold italics]

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

The subsequent case of Eng Foong Ho v. Attorney-General ("Eng Foong Ho") standardised the standing requirements for public and private law remedies.

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 differed according to the remedies sought. 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. In other words, the 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, the court in Tan Eng Hong did not deal with situations involving public rights.

Vellama and the green-light approach in Singapore

The Court of Appeal then examined the decision in Vellama d/o Marie Muthu v Attorney-General ("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 proven 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 ("CJ Chan") 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

Distinguishing Jeyaretnam from Tan Eng Hong and Vellama

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. As for 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, falling within the second Boyce exception.

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 Nicholas Bamforth, 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

After observing that rights and duties were not correlative in a public law context, 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”[emphasis in the original]. In the present case, Jeyaretnam’s case essentially insinuated 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 Inland Revenue Commissioners, ex parte National Federation of Self-employed and Small Businesses Ltd, 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:

(a) the gravity of the breach; and

(b) the statutory scheme of things in relation to which the breach is alleged to have occurred.

After examining the statutory scheme underlying Article 144, the court found that Parliament probably did not intend for ordinary citizens 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.

Further comments

Egregious breach and special damage

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.

Reception to the Court of Appeal decision

Jeyaretnam's comments: the interpretation issue

In his blog post dated 13 November 2013, Jeyaretnam responded to the Court of Appeal’s judgment and claimed that the judgment was evidence that the “[Singapore] [G]overnment is to all intents and purposes above the law”.

Jeyaretnam responded to both the Article 144 issue and the question of locus standi. With regard to Article 144, Jeyaretnam opined that the Court of Appeal had misunderstood and misinterpreted him, and that the judges had made several “basic” errors with regard to basic modern finance theory.

In a subsequent blog post dated 28 January 2014, Jeyaretnam made reference to Deputy Prime Minister and Minister for Finance Tharman Shanmugaratnam’s motion in Parliament to move for an increase in Singapore’s subscription to the International Bank for Reconstruction and Development, and claimed that Shanmugaratnam’s explanation was contradictory to the information that was given by the Ministry of Finance and the basis on which the Singapore Government had won its case. Jeyaretnam further claimed that this was indicative of the Singapore Government “pulling the wool over the eyes of the judges”.

Academic commentary: the locus standi issue

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 an approach 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. 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. This could be compared to the case of Vellama, where the applicant had a primary right to representation in Parliament, but had no secondary right because she did not suffer special damage. However, unlike Vellama, the court in Jeyaretnam (CA) suggested that the primary right was existent, but was non-justiciable because of the nature of the issue was “entirely political”.

This commentary adds yet another shade to the classification of rights in the context of a public law action. It would appear that the egregious breach exception, which gives a busybody standing to challenge a public authority simply because of the gravity of the breach, is a case involving a public right (in the primary sense) yielding “rights of enforceability in the courts by the public at large” (rights in the secondary sense).

Reconciliation of the green-light approach with Dixon and the actio popularis

It was also suggested that both the view in Dixon and the Roman-style actio popularis can actually be reconciled with the green-light approach prescribed in Jeyaretnam. 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.” This was consistent with the decision in Jeyaretnam that a secondary right of enforceability may be invoked after consideration of the “gravity of the public authority’s breach”.

References

• Constitutional Reference No. 1 of 1995 [1995] 1 S.L.R.(R) [Singapore Law Reports (Reissue)] 803, Constitutional Tribunal.
• Jeyaretnam Kenneth Andrew v Attorney-General [2013] 1 S.L.R. 619, High Court.
• Jeyaretnam Kenneth Andrew v Attorney-General [2014] 1 S.L.R. 345, Court of Appeal.
• Benjamin Joshua Ong, "Public law theory and judicial review in Singapore", [2013], SLW Commentary Issue 1/December.

Further reading

Articles

• Thio, Li-Ann (2012), "Administrative and Constitutional Law", SAL Annual Review 1: 13-16.

Papers and reports

• Annual Report of JPMorgan Chase & Co for the Financial Year 2011
• Constitutional Amendments to Safeguard Financial Assets and the Integrity of the Public Services [Cmd. 10 of 1988], Singapore: Printed for the Government of Singapore by Singapore National Printers, 1988, OCLC 83381201 ("1988 White Paper").
• Report of the Auditor-General for the Financial Year 2011/12.
• Safeguarding Financial Assets and the Integrity of the Public Services: The Constitution of the Republic of Singapore (Amendment No. 3) Bill [Cmd. 11 of 1990], Singapore: Printed for the Government of Singapore by Singapore National Printers, 1990, OCLC 39716236 ("1990 White Paper").

External links

• Bank of England’s Yellow Folder
• Federal Deposit Insurance Corporation's Risk Management Manual of Examination Policies
• Official website of the Auditor-General's Office Singapore
• Official website of the Monetary Authority of Singapore
• Official website of the Parliament of Singapore
• Official website of the Supreme Court of Singapore
• Rules of Court
• Singapore Parliament Reports
• Singapore Statutes Online