Vellama d/o Marie Muthu v Attorney-General

• Jurisdiction: Singapore
• Judge: Philip Pillai J
• Judgment Date: 09 April 2012
• Neutral Citation: [2012] SGHC 74
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 196 of 2012
• Published date: 09 April 2012
• Year: 2012
• Hearing Date: 03 April 2012,30 March 2012
• Plaintiff Counsel: M Ravi (L.F. Violet Netto)
• Defendant Counsel: David Chong SC, Hema Subramaniam and Lim Sai Nei
• Citation: [2012] SGHC 74

Philip Pillai J:

This was an application for leave under O 53 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“ROC”) to apply for: Declarations (“Declarations”) That the Prime Minister does not have unfettered discretion in deciding whether to announce by-elections in Hougang Single Member Constituency (“SMC”) (“the First Declaration”); and That the Prime Minister does not have unfettered discretion to decide when to announce by-elections in Hougang SMC and must do so within three months or within such reasonable time as this Honourable Court deems fit (“the Second Declaration”); and A Mandatory Order enjoining the Prime Minister to advise the President to issue a Writ of Election mandating by-elections in Hougang SMC pursuant to Article 49(1) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) and Section 24(1) of the Parliamentary Elections Act (Cap 218, 2011 Rev Ed) and to tender such advice within three months or within such reasonable time as the Honourable Court deems fit (“the Mandatory Order”).

I heard parties in chambers on the issue of leave on 30 March 2012. I directed counsel for the applicant to delete two headings in his Originating Summons No 196 of 2012 (“OS”): Chng Suan Tze v Minister for Home Affairs and others and other appeals [1988] 2 SLR(R) 525 and Article 21 of the Universal Declaration of Human Rights, 10 December 1948, 217A (III) (“UDHR”). Whilst counsel is at liberty to make submissions based on court decisions, the OS title reference to a particular case is unnecessary. The UDHR, not having been enacted as Singapore legislation, is not domestic law to which these proceedings relate. Accordingly such OS title reference is misleading. Counsel for the applicant agreed to do so.

On 2 April 2012, I granted leave for a substantive judicial review hearing. On 4 April 2012, the Attorney-General (“AG”) appealed against my decision to grant leave. I now state my reasons for granting leave.

The background

The applicant avers that she is a resident voter of Hougang SMC.

She avers that she had previously sought financial advice and assistance from her then Member of Parliament of Hougang SMC (“MP”), Mr Yaw Shin Leong (“Mr Yaw”) of the Workers’ Party, for whom she had voted in the last general election. He had invited her to follow up with him.

She avers that on 15 February 2012, the Workers’ Party declared that Mr Yaw had been expelled from the party. His parliamentary seat was thereafter declared vacant.

The applicant avers that she is deprived of an MP and that although she is being assisted by Workers’ Party MPs from the adjacent Aljunied Group Representative Constituency (“GRC”), she avers that they do not represent her vote.

She avers that she has a right to be represented by an MP whom she had an opportunity of choosing. She has made this application to clarify the law and to seek the Declarations and Mandatory Orders.

The threshold for O 53 leave applications

Applications for O 53 prerogative orders require the leave of court. One of the purposes of the requirement of leave is to sieve out groundless applications in limine. The Court of Appeal in Public Service Commission v Lai Swee Lin Linda [2001] 1 SLR(R) 133 explained that the requirement of seeking the leave of court (at [23]) was:

… intended to be a means of filtering out groundless or hopeless cases at an early stage, and its aim is to prevent a wasteful use of judicial time and to protect public bodies from harassment (whether intentional or otherwise) that might arise from a need to delay implementing decisions, where the legality of such decisions is being challenged. …

Leave is not granted unless the court is satisfied that: (i) the matter complained of is susceptible to judicial review; (ii) the applicant has sufficient interest in the matter; and (iii) the material before the court discloses an arguable or prima facie case of reasonable suspicion in favour of granting leave. Additionally, as these orders are discretionary remedies, the court has a discretion to refuse leave where the circumstances warrant a refusal (see Singapore Civil Procedure 2007 (G P Selvam chief ed) (Sweet & Maxwell Asia, 2007) at para 53/8/22).

It was not disputed for purposes of the leave application that the matter relates to the performance of powers and duties which involve a public element and thus is susceptible to judicial review. It was also not disputed that the applicant has sufficient interest in the matter.

The main issue in dispute in this leave application was whether the material before the court disclosed an arguable or prima facie case in favour of...