Ravi s/o Madasamy v Attorney-General and other matters

• Jurisdiction: Singapore
• Judge: See Kee Oon J
• Judgment Date: 10 July 2017
• Neutral Citation: [2017] SGHC 163
• Date: 10 July 2017
• Docket Number: Originating Summons No 548 of 2017 and Summons Nos 2619 and 2710 of 2017
• Published date: 29 December 2017
• Plaintiff Counsel: The plaintiff in person
• Defendant Counsel: Deputy Attorney-General Hri Kumar Nair SC, Aurill Kam, Seow Zhixiang, Germaine Boey and Jamie Pang (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Hearing Date: 15 June 2017
• Subject Matter: Constitutional Law,President

See Kee Oon J: Introduction

This was the plaintiff’s application by way of Originating Summons No 548 of 2017 (“the OS”), seeking to challenge the Elected Presidency Scheme (“EPS”). In its amended form, the OS stated that the requirements as to the qualifications of the President under Art 19 of the Constitution of the Republic of Singapore (1999 Rev Ed) (“Constitution”), as well as recent amendments to introduce a framework for reserved elections under Art 19B of the Constitution, were inconsistent with Art 12 of the Constitution.

The OS was filed on 22 May 2017 and named the Government (as represented by the Attorney-General) as the defendant. A hearing was scheduled on an expedited basis on 15 June 2017 as both parties agreed that there was some urgency for the OS to be heard. Indeed, I was given to understand that the sitting President’s term of office would expire on 31 August 2017 and that the writ for the upcoming Presidential election would be issued shortly.¹ Having heard the parties, I dismissed the OS. I now set out the grounds for my decision.

Preliminary applications

The plaintiff, a former practising lawyer, filed the OS in his personal capacity. He styled himself as a “public interest litigator”. Before the hearing of the OS proper, the plaintiff made three preliminary applications. The first was an oral application for the proceedings to be heard in open court. The second, Summons No 2619 of 2017 (“SUM 2619/2017”), was an application for the Deputy Attorney-General, Mr Hri Kumar Nair SC (“Mr Kumar”), to be disqualified from having conduct of the proceedings on behalf of the Government. The third, Summons No 2710 of 2017 (“SUM 2710/2017”), was an application to amend the OS and to add new prayers to the same. I shall briefly address these preliminary applications seriatim.

The oral application for proceedings to be heard in open court

I start with the plaintiff’s oral application for the proceedings to be heard in open court. The plaintiff contended that this was a constitutional hearing since the OS affected the “fundamental rights of all citizens”. He likened it to an application under O 53 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“Rules of Court”) for judicial review, which would be heard in open court (subject to leave being granted).

Mr Kumar, who appeared on behalf of the defendant, objected and pointed out that O 28 r 2 of the Rules of Court would govern the proceedings. This rule provides as follows:

Hearing of originating summons (O. 28, r. 2)

2. All originating summonses shall be heard in Chambers, subject to any express provision of these Rules, any written law, any directions of the Court or any practice directions for the time being issued by the Registrar.

Mr Kumar submitted that there was no exception contemplated for “constitutional” matters and that there was no special reason why an exception should be made in the present case. Moreover, Mr Kumar highlighted that the nature of the applications before the court involved scandalous allegations and remarks which were political attacks. He submitted that the plaintiff was motivated by a personal agenda to seek a hearing in open court. That agenda was already laid bare by his posts on Facebook, where he had sought crowdfunding for his litigation.

For a while, the plaintiff maintained that matters of public importance going to the heart of the Constitution were being surfaced by him in the public interest. Somewhat abruptly, he then changed course and made an oral application to “convert” the OS to an application under O 53 of the Rules of Court for judicial review. He stated that he intended to seek a prohibitory order restraining the Prime Minister from proceeding with the upcoming Presidential election. Mr Kumar pointed out that this was essentially an attempt to avoid having to obtain leave to commence proceedings under O 53 of the Rules of Court and that, in any case, very different substantive reliefs were being sought.

I dismissed the plaintiff’s oral application for the proceedings to be heard in open court and directed that the hearing of the OS before me continue in chambers as scheduled by the registry. I saw no reason to depart from the general rule in O 28 r 2 of the Rules of Court. Moreover, I saw no basis to allow a “conversion” of the OS to an application under O 53 of the Rules of Court. This was a barefaced attempt by the plaintiff to ignore and circumvent the requirement for leave under O 53 of the Rules of Court while hoping to have the hearing conducted in open court to suit his own purposes.

The application to disqualify Mr Kumar (SUM 2619/2017)

In SUM 2619/2017, the plaintiff applied for Mr Kumar to be disqualified from having conduct of the proceedings on behalf of the Government. This was on the ground that Mr Kumar, being a former People’s Action Party Member of Parliament (“PAP MP”) from 2011 to 2015, was partisan and in a position of conflict. The relevant portion of the application stated as follows:

Mr Hri Kumar Nair, being a former member of the People's Action Party (PAP) and Member of Parliament (MP) for Bishan-Toa Payoh Group Representation Constituency (GRC) between 2011 and 2015, has partisan interest in this matter and is therefore conflicted in his duty to serve the interest of the public as Deputy Attorney-General and ought thereby be discharged from acting further in this matter.

The plaintiff contended that Mr Kumar would not be able to fairly discharge his duties to the public as well as the Government. The plaintiff then went on at some length on the difficulty that various key appointment holders supposedly faced on account of the Prime Minister having the power and discretion to decide on such appointments, including the appointment and removal of judges and the Attorney-General. He also alluded to the importance of public perception and natural justice.

Mr Kumar responded in these terms: he was appearing as counsel for the Government and it would be for the Government to complain if he was thought to be in a position of conflict given his former role as a PAP MP and his present role in advising and representing the Government. In any event, there was no case authority which established that public perception was a relevant consideration in determining whether he ought to be disqualified.

I dismissed SUM 2619/2017 as I saw no basis in support of the application other than mere speculation and conjecture. I saw no reason why Mr Kumar would be unable to conduct his case fairly and objectively without conflict, having regard to the interests of the public and the Government.

The application to amend the OS (SUM 2710/2017)

The third, and final, preliminary application was SUM 2710/2017. This was filed by the plaintiff on 13 June 2017, just two days before the scheduled hearing of the OS on 15 June 2017. However, before I could proceed to hear the parties on the merits of the application, the plaintiff peremptorily announced that he would appeal against my dismissal of SUM 2619/2017. He also mentioned other possible applications he was planning to make, such as seeking a declaration that the Judiciary was “not capable of being independent” since the Prime Minister had complete control over all key appointments. The plaintiff then asserted that the matter should not proceed any further until his intended application for a declaratory order was dealt with.

This was a rather curious and unexpected turn of events but it eventually transpired that the plaintiff was trying to seek an adjournment to read the submissions and authorities tendered by the defendant. He explained that he suffered from bipolar disorder, was a disabled person and had not slept the night before. If an adjournment was not allowed, he would have to go to see his doctor and obtain a medical certificate. He complained that he would be hampered in conducting his case if an adjournment was not granted.

Mr Kumar objected to an adjournment. He pointed out that the plaintiff had agreed that the hearing should take place on an expedited basis, given that the sitting President’s term of office would expire on 31 August 2017 and that the writ for the upcoming Presidential election would be issued shortly. The plaintiff had informed the registry that he would be willing to take any hearing date before 20 June 2017. As such, the hearing date was well within his contemplation. Mr Kumar also highlighted that the plaintiff had failed to comply with the registry’s timelines for the filing of his submissions. In any event, the materials and authorities tendered by the defendant would not be new or surprising to the plaintiff since they related to the basic structure doctrine (arising from the decision of the Indian Supreme Court in Kesavananda Bharati v State of Kerala AIR 1973 SC 1461 (“Kesavananda”)) and the ambit of various constitutional provisions. I noted that these were matters the plaintiff himself had raised in his affidavit filed and affirmed on 22 May 2017 in support of the OS (“Supporting Affidavit”) and his skeletal arguments.

The plaintiff emphasised that he was a constitutional law expert. Mr Kumar was quick on the uptake and responded that all the relevant cases should then be familiar to him and pose no difficulty or challenge. He submitted that the application for an adjournment was sought only to delay the proceedings and to give the plaintiff more time to consider making other possible applications. It was brought to my attention that the plaintiff had made a Facebook post the night before the hearing which plainly belied his claims of being inadequately prepared and tired. In this post, the plaintiff proclaimed to all and sundry that the “guns [were] blazing”, suggesting that he was ready and eager to put forward his arguments in court the next day. The plaintiff also appeared exuberant and confident, given his broadcasted...