Jeyaretnam Kenneth Andrew v AG

• Jurisdiction: Singapore
• Judgment Date: 22 October 2012
• Date: 22 October 2012
• Docket Number: Originating Summons No 657 of 2012
• Court: High Court (Singapore)

Jeyaretnam Kenneth Andrew

Plaintiff

and

Attorney-General

Defendant

[2012] SGHC 210

Tan Lee Meng J

Originating Summons No 657 of 2012

High Court

Constitutional Law—Constitution—MAS offering contingent loan of US$4 bn to International Monetary Fund—Whether leave to apply for prerogative orders should be granted—Whether applicant had sufficient interest in matter

Constitutional Law—Constitution—MAS offering contingent loan of US$4 bn to International Monetary Fund—Whether leave to apply for prerogative orders should be granted—Whether material before court disclosed arguable case or prima facie case of reasonable suspicion in favour of granting remedies sought by applicant—Whether Art 144 Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) had to be interpreted in a way that would promote purpose or object—Article 144 Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)

Constitutional Law—Constitution—MAS offering contingent loan of US$4 bn to International Monetary Fund—Whether leave to apply for prerogative orders should be granted—Whether material before court disclosed arguable case or prima facie case of reasonable suspicion in favour of granting remedies sought by applicant—Whether Art 144 Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) had to be interpreted in a way that would promote purpose or object—Whether Art 144 had to be viewed in the context of the Elected Presidency—Article 144 Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)

Constitutional Law—Constitution—MAS offering contingent loan of US$4 bn to International Monetary Fund—Whether leave to apply for prerogative orders should be granted—Whether material before court disclosed arguable case or prima facie case of reasonable suspicion in favour of granting remedies sought by applicant—Whether Art 144 Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) had to be interpreted in a way that would promote purpose or object—Whether comparison between Bill, Explanatory Statement and final version of Art 144 (1) revealed intention of Parliament—Article 144 Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)

Constitutional Law—Constitution—MAS offering contingent loan of US$4 bn to International Monetary Fund—Whether leave to apply for prerogative orders should be granted—Whether material before court disclosed arguable case or prima facie case of reasonable suspicion in favour of granting remedies sought by applicant—Whether Art 144 Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) had to be interpreted in a way that would promote purpose or object—Whether legislation referred to in Art 144 (3) supported conclusion that Art 144 did not concern giving of loans by Government—Article 144 Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)

Constitutional Law—Constitution—MAS offering contingent loan of US$4 bn to International Monetary Fund—Whether leave to apply for prerogative orders should be granted—Whether material before court disclosed arguable case or prima facie case of reasonable suspicion in favour of granting remedies sought by applicant—Whether Art 144 Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) had to be interpreted in a way that would promote purpose or object—Whether reddendo singula singulis principle applied—Article 144 Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)

Constitutional Law—Constitution—MAS offering contingent loan of US$4 bn to International Monetary Fund—Whether leave to apply for prerogative orders should be granted—Whether subject matter of complaint susceptible to judicial review

On 20 April 2012, the Monetary Authority of Singapore (‘MAS’) announced that Singapore offered a contingent loan of US$4 bn (‘the Loan’) to the International Monetary Fund (‘IMF’) as part of international efforts involving more than 30 countries, including Australia, the United Kingdom and the Republic of Korea, to ensure that the IMF had sufficient resources to deal with the ongoing financial crisis and promote global economic and financial stability. The MAS explained that its contribution was in the form of contingent loans to the IMF itself and not to countries borrowing from the IMF.

The applicant sought leave to apply for prerogative orders and declarations against the Government of Singapore (‘the Government’) and/or the MAS with respect to the Loan. He claimed that the offer of the Loan by the MAS contravened Art 144 of the Constitution of the Republic of Singapore (1999 Rev Ed) (‘the Constitution’), which, in his view, required the Loan to be approved by Parliament and the President. His application was opposed by the respondent, who acted for the Government and contended that the Loan was outside the ambit of Art 144.

Held, dismissing the application:

(1) An application for prerogative orders under O 53 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (‘ROC’) required the leave of the court. Leave to apply for prerogative orders would not be granted unless the court was satisfied as to the following: (a)the subject matter of the complaint was susceptible to judicial review; (b)the material before the court disclosed an arguable case or a prima facie case of reasonable suspicion in favour of granting the remedies sought by the applicant; and (c)the applicant had sufficient interest in the matter: at [4] and [5].

(2) It was common ground that the subject matter of the applicant's complaint in these proceedings was susceptible to judicial review: at [6].

(3) To obtain leave to apply for prerogative orders, what was required to be shown was not a prima facie case, but a prima facie case of reasonable suspicion: at [7].

(4) Article 144 had to be interpreted in a way that would promote its purpose or object. A quick perusal of the relevant materials concerning the enactment of Art 144 revealed that it was quite plain that this constitutional provision was only engaged when the Government raised a loan or gave a guarantee and not when it gave a loan: at [12].

(5) The intention of Parliament became abundantly clear when the arrangement of the relevant words ‘guarantee’, ‘loan’, ‘given’ and ‘raised’ in (a)the Constitution of the Republic of Singapore (Amendment No 3) Bill 1990 (Bill 23 of 1990) (‘the Bill’); (b)the Explanatory Statement with respect to the Bill (‘the Explanatory Statement’); and (c)the amended Constitution, which incorporated Art 144 (1) and Art 144 (2) in 1991, was taken into account: at [13].

(6) When determining the intention of Parliament, Art 144 had to be viewed in the context of the Elected Presidency as it was enacted when the Constitution was amended to provide for an elected President: at [18].

(7) The fact that Art 144 (2) referred to the ‘giving of any guarantee’ and the ‘raising of any loan’ and did not mention the ‘giving of any loan’ supported the conclusion that Art 144 (1) was not engaged when loans were given by the Government: at [23]

(8) The conclusion that Art 144 did not concern the giving of loans by the Government was further reinforced by a consideration of two of the statutes referred to in Art 144 (3), which provided that Art 144 (1) (b)shall apply to, inter alia, the Financial Procedure Act (Cap 109, 2012 Rev Ed) (‘the FPA’) and the Bretton Woods Agreements Act (Cap 27, 2012 Rev Ed) (‘the BWAA’): at [24].

(9) The application of the reddendo singula singulis principle put loans that were given by the Government outside the ambit of Art 144: at [32].

(10) Article 144 (1) was obviously intended to apply to the raising of loans and not the giving of loans. It followed that the approval of Parliament and the concurrence of the President were not required for the Loan. As such, the present application did not disclose a prima facie case of reasonable suspicion in favour of granting the remedies sought and it could not be said that there appeared to be a point which might, on further consideration, turn out to be an arguable case in favour of granting to the applicant the relief claimed. On this ground alone, the application for leave had to be dismissed: at [36].

(11) If citizenship alone did not confer locus standi where fundamental liberties were concerned and it had to be established that the applicant's own rights had been violated, an applicant in a case involving a public right should certainly be required to show that he had suffered special damage as a result of the public act being challenged and that he had a genuine private interest to protect or further. As the applicant in the present case did not satisfy this requirement, his application for leave might also be dismissed on the ground that he had no locus standi: at [48].

Adnan bin Kadir v PP [2013] 1 SLR 276 (refd)

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

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

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)

Ng Yang Sek v PP [1997] 2 SLR (R) 816; [1997] 3 SLR 661 (refd)

Public Service Commission v Lai Swee Lin Linda [2001] 1 SLR (R) 133; [2001] 1 SLR 644 (refd)

R v Her Majesty's Treasury, Ex parte Smedley [1985] QB 657 (refd)

R v Secretary of State for Foreign and Commonwealth Affairs, Ex parte World Development Movement Ltd [1995] 1 WLR 386 (refd)

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

Vellama d/o Marie Muthu v AG [2012] 2 SLR 1033 (refd)

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

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