Jeyaretnam Kenneth Andrew v AG

• Judgment Date: 31 October 2013
• Date: 31 October 2013
• Docket Number: Civil Appeal No 154 of 2012
• Court: Court of Appeal (Singapore)

Jeyaretnam Kenneth Andrew

Plaintiff

and

Attorney-General

Defendant

[2013] SGCA 56

Chao Hick Tin JA

,

Andrew Phang Boon Leong JA

and

Quentin Loh J

Civil Appeal No 154 of 2012

Court of Appeal

Administrative Law—Judicial review—Locus standi—What was test for locus standi—Standards for standing where applicant's public or private rights were engaged—Whether applicant could have standing where alleged breach of public duty did not generate correlative rights—Whether applicant could have locus standi when his rights were not engaged but there existed grave and exceptional illegality

Administrative Law—Judicial review—Locus standi—Whether appellant had locus standi—Origin and purpose of standing rules—Standards applicable in Singapore based on English law

Constitutional Law—Constitution—Whether leave to apply for judicial review should be granted—Whether material before court disclosed prima facie case of reasonable suspicion—Whether Art 144 referred to giving of loans—Whether MAS' contingent loan to International Monetary Fund was in effect implied guarantee—Whether MAS' contingent loan to International Monetary Fund was contingent liability—Article 144 Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)

In 2012, the Monetary Authority of Singapore (‘the MAS’) made a contingent loan (‘the Loan’) to the International Monetary Fund (‘the IMF’) as part of the broader international effort to tackle the then on-going Eurozone financial crisis and promote global economic and financial stability. In response, the appellant sought to bring judicial review proceedings against the Government of Singapore (‘the Government’), alleging that the offer of the Loan contravened Art 144 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (‘the Constitution’) as the requisite parliamentary and presidential approval had not been obtained before the granting of the Loan. In particular, he wanted to apply for certain prerogative orders and declarations to be made against the Government. As such, he applied for leave to obtain those reliefs before the High Court. This appeal was brought against the High Court's refusal to grant such leave to him.

Held, dismissing the appeal:

(1) There was no prima facie case of reasonable suspicion as the materials made abundantly clear that Art 144 of the Constitution only referred to the giving of guarantees and raising of loans, and not the giving of loans: at [11] .

(2) The appellant's reliance on s 38 of the Monetary Authority of Singapore Act (Cap 186, 1999 Rev Ed) for the proposition that there was an implied guarantee given by the Government to reimburse the MAS in respect of any loss which the MAS might suffer due to the IMF's inability to repay the Loan was flawed. Instead, s 38 (1) referred to the payment of moneys due from the MAS to others and not the other way round (ie,moneys due from others to the MAS): at [16] .

(3) The Loan could not be a contingent liability simply by the sheer risk allegedly inherent in it. The appellant's reliance on foreign standards and wholly irrelevant materials was not helpful. His attempts to draw comparisons between the Loan and call options and guarantees were also flawed: at [23] and [26] .

(4) The law on standing was not statute-based, but a judge-made doctrine. Standing rules existed as a procedural barrier which applicants had to satisfy as a preliminary point before the court would embark on an examination of the merits of the claim and grant any relief pray for. This was distinct from claims in private law, where the right to apply for a remedy and the entitlement to the remedy were tied up in the same inquiry. The appropriate test for determining standing turned on the nature of the rights at stake altogether: at [34] .

(5) The first of the two exceptions to the strict rule that private individuals could not enforce a public trust by a private suit alone set out in Boyce v Paddington BC[1903] 1 Ch 109 (‘Boyce’), ie, where the applicant had a private right, clearly did not apply in the present case. The question was whether the second exception, ie, where the applicant had suffered special damage peculiar to himself, could apply here: at [36] and [37] .

(6) The English body of law on standing which Singapore inherited as at the cut-off point of 1977 was confusing with different standards for the various remedies, and conflicting lines of authority within each remedy. In general, however, the standard set for the prerogative remedies (viz, certiorari, prohibition orders and mandamus) was lower than that for the private law remedies (viz, declaration and injunction): at [42] .

(7) Following the pronouncement in Eng Foong Ho v AG[2009] 2 SLR (R) 542 that a uniform standard applied for establishing locus standi irrespective of the nature of the remedy prayed for, Tan Eng Hong v AG[2012] 4 SLR 476 (‘Tan Eng Hong’) and Vellama d/o Marie Muthu v AG[2013] 4 SLR 1 (‘Vellama’) had since made it clear that the standard had been pitched at what used to be the requirements in relation to declarations or injunctions under the old English law: at [45] .

(8) Tan Eng Hong was an elaboration of Boyce's first exception, since it concerned a private right, whilst Vellama engaged Boyce's second exception, since it concerned a public right. In contrast, the appellant had no rights to assert in this appeal and his claim was simply brought in the public interest. Hence, his case fell outside the Boyce exceptions altogether: at [46] , [47] and [51] .

(9) Where there was a grave and exceptional illegality involving egregious breaches of the law, individuals whose rights were not directly affected might have locus standi to bring judicial review proceedings against such obvious and flagrant disregard for the law. The gravity of the breach and statutory scheme of things would be relevant. However, this exception was not to be seen as a spurring move towards the public interest litigation that had been occurring in the courts of other jurisdictions where taxpayers' actions were commonplace. In most cases the principles in Boyce would still be the predominant test: at [60] , [62] and [63] .

(10) In the scheme of things under Art 144, it was unlikely that Parliament could have intended that persons like the appellant would have the standing to ask for judicial review of the MAS's action. It was significant to note that the approvals required under Art 144 were those of the President and Parliament. Pertinently, though the President and Parliament were notified of the Loan issue, neither had thought fit to question the decision. The nature of the issue was political and should be resolved as such: at [61] .

Boyce v Paddington Borough Council [1903] 1 Ch 109 (folld)

Chan Hiang Leng Colin v Minister for Information and the Arts [1995] 2 SLR (R) 627; [1995] 3 SLR 644 (refd)

Chan Hiang Leng Colin v Minister for Information and the Arts [1996] 1 SLR (R) 294; [1996] 1 SLR 609 (refd)

Constitutional Reference No 1 of 1995 [1995] 1 SLR (R) 803; [1995] 2 SLR 201 (refd)

De Haber v Queen of Portugal (1851) 17 QB 171; 117 ER 1246 (refd)

Eng Foong Ho v AG [2009] 2 SLR (R) 542; [2009] 2 SLR 542 (refd)

Intertek India Pte Ltd v State of Karnataka (2 August 2012) (distd)

Gouriet v Union of Post Office Workers [1978] AC 435 (folld)

Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12 (refd)

IRC v National Federation of Self-employed and Small Businesses Ltd [1982] AC 617 (refd)

Karaha Bodas Co LLC v Pertamina Energy Trading Ltd [2006] 1 SLR (R) 112; [2006] 1 SLR 112 (refd)

Lake Shore & MSRCo v Kurtz (1894) 10 Ind App 60 (refd)

Pudsey Coal Gas Co v Corp of Bradford (1873) LR 15 Eq 167 (refd)

R v Somerset County Council, ex parte Dixon [1998] Env LR 111 (refd)

Tan Eng Hong v AG [2012] 4 SLR 476 (refd)

Vellama d/o Marie Muthu v AG [2013] 4 SLR 1 (refd)

Bretton Woods Agreements Act (Cap 27, 2012 Rev Ed) s 9

Constitution of the Republic of Singapore (1985 Rev Ed,1999 Reprint) Art 144 (consd) ;Arts 144 (1) , 144 (2)

Financial Procedure Act (Cap 109, 2012 Rev Ed) s 15

International Development Association Act (Cap 144 A, 2003 Rev Ed) s 5 (1)

Monetary Authority of Singapore Act (Cap 186, 1999 Rev Ed) s 38

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 15 r 16, O 53, O 53 r 1

Appellant in person

Aedit Abdullah SC, Aurill Kam, Jurena Chan, Jeremy Yeo Shenglong and Vanessa Yeo (Attorney-General's Chambers) for the respondent.

Judgment reserved.

Chao Hick Tin JA

(delivering the judgment of the court):

Introduction

1 This is an appeal against the decision of a High Court judge (‘the Judge’) given in Originating Summons No 657 of 2012 (‘the OS’) where the plaintiff, Mr Kenneth Andrew Jeyaretnam (‘the Appellant’), applied for judicial review to challenge a decision of the Government of Singapore (‘the Government’) offering, through the instrumentality of the Monetary Authority of Singapore (‘MAS’), to grant a contingent US$4 bn bilateral loan (‘Loan’) to the International Monetary Fund (‘the IMF’).

2 The Appellant is the Secretary-General of the Reform Party, one of the political parties in Singapore. In his affidavit he introduced himself as an economist by training and has had ‘almost 30 years of uninterrupted experience in the global finance industry in both Asia and the United Kingdom with an unblemished record of registration with the FSA’.

Background to the dispute

3 On 20 April 2012, the MAS announced that Singapore would make the Loan to the IMF, as part of the broader international effort to provide the IMF with sufficient resources to tackle the then on-going Eurozone financial crisis and promote global economic and financial stability. It was to be a contingent loan to the IMF (not to the countries which would be borrowing from the IMF) and the sum would remain as part of Singapore's Official Foreign Reserves (‘OFR’).

4 The Appellant claimed...