Vellama d/o Marie Muthu v AG

• Jurisdiction: Singapore
• Judgment Date: 05 July 2013
• Date: 05 July 2013
• Docket Number: Civil Appeal No 97 of 2012
• Court: Court of Appeal (Singapore)

Vellama d/o Marie Muthu

Plaintiff

and

Attorney-General

Defendant

[2013] SGCA 39

Chao Hick Tin JA

,

Andrew Phang Boon Leong JA

and

V K Rajah JA

Civil Appeal No 97 of 2012

Court of Appeal

Administrative Law—Judicial review—Leave to apply for prerogative order and declaratory relief—Application for judicial review filed less than three weeks after vacancy of seat of elected Member of Parliament—Whether there was factual basis for High Court to grant leave

Administrative Law—Judicial review—Standing—Change of circumstances between initial application and substantive hearing—Whether issue of standing crystallising at point of first initiation of proceedings

Administrative Law—Judicial review—Standing—Applicant seeking declaration on Prime Minister’s duties under Art 49 Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) —Whether application based on private or public rights—Whether applicant having to prove special damage to establish standing in application for declaratory relief predicated on public rights—Article 49 Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)

Administrative Law—Remedies—Declaration—Applicant seeking standalone declaration after withdrawing prayer for prerogative order in proceedings commenced under O 53 Rules of Court (Cap 322, R 5, 2006 Rev Ed) —Whether court having power to grant standalone declarations in principal application for prerogative order—O 53 r 1 and O 53 r 7 Rules of Court (Cap 322, R 5, 2006 Rev Ed)

Constitutional Law—Constitution—Interpretation—Filling of casual vacancies in elected Parliamentary seats for single member constituencies—Whether Prime Minister having discretion whether to call by-election—Whether Prime Minister having discretion when to call by-election—Article 49 Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)

Following the vacancy of the Parliamentary seat for Hougang Single Member Constituency (“SMC”) on 14 February 2012, the appellant – a resident voter of the constituency – instituted judicial review proceedings for a mandatory order requiring the Prime Minister to advise the President of the Republic of Singapore to issue a writ of election for Hougang SMC within three months from the date of the vacancy or such other reasonable period as the court deemed fit. The application also sought a declaration on the proper construction of Art 49 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”).

On 2 March 2012, a week after the appellant’s application, the Prime Minister announced that he intended to call a by-election in Hougang SMC but had not yet decided on its timing. On 3 April 2012, the High Court granted the appellant leave for a substantive judicial review hearing. The writ of election for Hougang SMC was issued on 9 May 2012 and the by-election was held on 26 May 2012. Three days later, the appellant nevertheless proceeded to file her summons seeking the same mandatory order and a declaration. The appellant later informed the High Court that she was abandoning her prayer for the mandatory order. On 1 August 2012 the High Court dismissed the appellant’s application.

Held, dismissing the appeal:

(1) The authorities were clear that an applicant’s standing did not crystallise at the point when proceedings were initiated, but remained subject to review until the courts arrived at a final determination: at [13] and [14] .

(2) In Tan Eng Hong v AG [2012] 4 SLR 476 it was acknowledged that in some instances our courts had proceeded to hear the case and granted declaratory relief even if the facts on which the action was based could be described as theoretical due to a change of circumstances, but it nevertheless had to be shown that the relief claimed would be of practical significance to the applicant :at [25] and [26] .

(3) Further, it was trite that an applicant could not apply for declaratory relief if there was no factual basis for such an application: at [15] .

(4) The appropriate test for determining an applicant’s standing turned on the nature of the rights at stake although, whether it was a public or private right, it could be prosecuted by private citizens. The applicable principle on standing where an application for declaratory relief was predicated on public rights had to be that which was set out in Gouriet v Union of Post Office Workers [1978] AC 435 and traceable to the second limb of Buckley J’s statement in Boyce v Paddington Borough Council [1901] 1 Ch 109, namely, that the applicant who asserted no more than a public right must demonstrate that the interference with, or violation of, such a public right had caused him “special damage”. The mere fact that other potential litigants had also suffered damage did not preclude the applicant from establishing that he had incurred “special damage”. There was also merit in the High Court of Australia’s clarification in Australia Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 that “special damage” referred to a ‘special interest’ which was not limited to actual pecuniary loss and need not have been exclusive to the applicant: at [29] , [31] , [33] and [41] to [43] .

(5) After the by-election in Hougang SMC was held on 26 May 2012, the facts which underpinned the appellant’s application were rendered moot and she was thereafter no different from any other citizen interested in the proper construction of Art 49 of the Constitution unless she had suffered “special damage”. It was abundantly clear that the “special damage” or “special interest” exception had not been made out as the Appellant was not able to point to any damage which she had suffered or any special interest of hers which had been affected. Accordingly, the appeal was dismissed: at [38] , [43] and [44] .

(6) The proper construction of O 53 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) should be such that an applicant who wished to obtain a prerogative order and a declaration under this order had, first, to obtain leave to make an application for a prerogative order (O 53 r 1 (1) (b )). In the same application he could also apply for a declaratory relief. Once leave was granted, and upon hearing the parties on the substantive merits, the court could grant (a) any prerogative order and a declaration; or (b) only a prerogative order without any declaration; or (c) only the declaration without any prerogative order: at [53] .

(7) Having regard to the role of a Member of Parliament in the Westminster form of government and on a plain reading of Art 49, it was clear that the Constitution placed a duty upon the Prime Minister to call a by-election (unless he intended to dissolve Parliament in the near future) to fill casual vacancies of elected Members of Parliament which might arise from time to time: at [82] .

(8) As there was no prescribed time-frame within which a casual vacancy had to be filled, s 52 of the Interpretation Act (Cap 1, 2002 Rev Ed) – which required that the prescribed act shall be done “with all convenient speed” – was germane. Section 52 enshrined the common law concept of a reasonable time, which had to of necessity take into account all the circumstances relevant to the act to be carried out. As such, while the Prime Minister’s discretion as to the timing of an election to fill a casual vacancy was subject to judicial review, it was in the nature of such a fact-sensitive discretion that judicial intervention would only be warranted in exceptional cases: at [83] to [85] .

Australia Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 (refd)

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

Chng Suan Tze v Minister for Home Affairs [1988] 2 SLR (R) 525; [1998] SLR 132 (refd)

Diplock, Re [1941] 1 Ch 253 (refd)

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

Federal Steam Navigation Co Ltd v Department of Trade and Industry [1974] 1 WLR 505 (refd)

Gibson v Union of Shop, Distributive and Allied Workers [1968] 1 WLR 1187 (refd)

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

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

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

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

London Passenger Transport Board v Moscrop [1942] AC 332 (refd)

Ooi Ah Phua v Officer-in-Charge Criminal Investigation, Kedah/Perlis [1975] 2 MLJ 198 (refd)

PP v Mah Chuen Lim [1975] 1 MLJ 95 (refd)

R v Head Teacher of Fairfield Primary School, ex parte W (CO/541/97, transcript: Smith Bernal) (refd)

R v International Stock Exchange of the United Kingdom and the Republic of Ireland Ltd, Ex parte Else (1982) Ltd [1993] QB 534 (refd)

R v Legal Aid Board, ex parte Hardiman (CO/3193/95) (refd)

R v Secretary of State for the Environment, Ex parte Rose Theatre Trust Co [1990] 1 QB 504 (refd)

R v Secretary of State for the Home Department, Ex parte Fire Brigades Union [1995] 2 AC 513 (refd)

R v Secretary of State for the Home Department, Ex parte Salem [1999] 1 AC 450 (refd)

R (Giles) v Parole Board [2004] 1 AC 1 (refd)

R (Mc Kenzie) v London Borough of Waltham Forest [2009] EWHC 1097 (Admin) (refd)

R v Secretary of State for the Home Department (18 December 2000) (refd)

Ricket v The Metropolitan Railway Co (1867) LR 2 HL 175 (refd)

Secretary of State for the Home Department v Rehman [2003] 1 AC 153 (refd)

Stockport District Waterworks Co v Manchester Corp (1862) 9 Jur NS 266 (refd)

Tai Choi Yu v Government of Malaysia [1994] 1 MLJ 677 (refd)

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

Vellama d/o Marie Muthu v AG [2012] 4 SLR 698 (not folld)

Winterbottom v Lord Derby (1867) LR 2 Ex 316 (refd)

Yip Kok Seng v Traditional Chinese Medicine Practitioners Board [2010] 4 SLR 990 (refd)

Yong Vui Kong v AG [2011] 2 SLR 1189...