Vellama d/o Marie Muthu v Attorney-General

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 05 July 2013
• Neutral Citation: [2013] SGCA 39
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 97 of 2012
• Published date: 25 July 2013
• Year: 2013
• Hearing Date: 14 January 2013
• Plaintiff Counsel: Ravi s/o Madasamy (L.F. Violet Netto)
• Defendant Counsel: Chong Gek Sian David SC, Low Siew Ling and Lim Sai Nei (Attorney-General's Chambers)
• Citation: [2013] SGCA 39

Chao Hick Tin JA (delivering the judgment of the court): Introduction

Originating Summons No 196 of 2012 (“OS 196/2012”) was instituted by the Appellant following the vacancy of the Hougang Single Member Constituency (“SMC”) under Art 46(2)(b) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”), as a result of the incumbent Member of Parliament (hereinafter referred to as “MP” or “Member” as appropriate), Mr Yaw Shin Leong, being expelled from the political party for which he stood in the General Election 2011. In OS 196/2012, the Appellant sought a declaration as to the proper construction of Art 49 of the Constitution and also a mandatory order requiring the Prime Minister to advise the President of the Republic of Singapore (“the President”) 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 deems fit. Following leave granted pursuant to O 53 r 1 of the Rules of Court (Cap 322, R5, 2006 Rev Ed) (the “Rules of Court”), the High Court judge (“the Judge”) ruled that the Prime Minister has the full discretion to determine if he wishes to call a by-election to fill the vacancy and, if so, when such a by-election should be held. The Appellant, being dissatisfied with that ruling, appeals to this court.

The background

On 14 February 2012 the seat for Hougang SMC, under which the Appellant was a resident voter, became vacant on account of the expulsion of Mr Yaw Shin Leong from the Workers’ Party of Singapore (“the Workers’ Party”). Thereafter some exchange of views between Members took place in the media. The Member for Holland-Bukit Timah Group Representational Constituency (“GRC”), Mr Christopher de Souza, tabled a question in Parliament asking whether the Prime Minister was considering calling a by-election in Hougang SMC and, if so, when. On 9 March 2012, the Prime Minister answered with the following statement (see Singapore Parliamentary Debates, Official Report (9 March 2012) vol 88):

... I intend to call a by-election in Hougang to fill this vacancy. However, I have not yet decided on the timing of the by-election. In deciding on the timing, I will take into account all relevant factors, including the well being of Hougang residents, issues on the national agenda, as well as the international backdrop which affects our prosperity and security.

[emphasis added]

However, on 2 March 2012, one week before the Prime Minister’s statement, the Appellant had already filed OS 196/2012.

On 3 April 2012, leave was granted by the Judge to apply for the mandatory order.¹ The next day, 4 April 2012, the Attorney-General filed a Notice of Appeal against the leave given by the Judge.²

On 9 May 2012, the President, upon the advice of the Prime Minister, issued a writ of election for Hougang SMC (“the Writ of Election”). Following this development, the Appellant wrote to the Attorney-General stating that “as the factual objective of her litigation has now been achieved timeously, she is prepared to withdraw her application in OS 196”.³

On 16 May 2012, the Attorney-General withdrew his appeal against the decision granting leave to the Appellant in OS 196/2012. The by-election was duly held on 26 May 2012 and the candidate for the Workers’ Party was returned to the seat for Hougang SMC. However, on 29 May 2012 the Appellant nevertheless proceeded to file Summons No 2639 of 2012 seeking the same mandatory order and declaration.⁴ Following the dismissal on 5 July 2012 of certain interlocutory applications brought by both parties, oral arguments from both parties on the substantive merits were heard on 16 July 2012. We should add that at the latter hearing counsel for the Appellant informed the court that the Appellant was abandoning her application for the mandatory order (see Vellama d/o Marie Muthu v Attorney-General [2012] 4 SLR 698 (“the Judgment”) at [14]). On 1 August 2012, the Judge delivered his judgment, dismissing the substantive prayer which the Appellant sought, namely, a declaration that the Prime Minister must within the period of three months of a seat becoming vacant, or such other reasonable period, advise the President to issue the writ of election.

Decision of the Judge

In his judgment the Judge addressed two issues: Whether the court has the power to grant standalone declarations in an application made under O 53 of the Rules of Court for a prerogative order which also included a prayer for declaratory reliefs (“the procedural issue”) (at [35] of the Judgment); and Whether the Prime Minister has the discretion to call or not to call a by-election to fill an elected Member vacancy, and if he must call for such a by-election, the period within which he should do so (“the substantive issue”) (at [115] of the Judgment).

In addition to these two issues addressed by the Judge, the parties have each raised an additional point. The Appellant has raised a novel argument that, by virtue of Art 39(1)(a) of the Constitution, Parliament is not properly constituted where the number of elected MPs is less than that required to be returned at a general election (“the Quorum issue”). This is relied upon to buttress the Appellant’s contention that the Prime Minister must call a by-election to fill a vacancy which occurs during Parliament’s term, commonly referred to as a ‘casual vacancy’. On the other hand, the Attorney-General has contended that the Appellant lacks locus standi to pursue the application for a declaration (“the locus standi issue”).

The Judge’s decision on the procedural issue

The procedural issue centres upon the interpretation of O 53 r 1 and O 53 r 7 as amended by the Rules of Court (Amendment No 2) Rules 2011, which came into effect on 1 May 2011. These provisions now read:

No application for Mandatory Order, etc., without leave (O. 53, r. 1) 1. – (1) An application for a Mandatory Order, Prohibiting Order or Quashing Order (referred to in this paragraph as the principal application) – (a) may include an application for a declaration; but (b) shall not be made, unless leave to make the principal application has been granted in accordance with this Rule. ... Power of Court to grant relief in addition to Mandatory Order, etc. (O. 53, r. 7)

7. – (1) Subject to the Government Proceedings Act (Cap. 121), where, upon hearing any summons filed under Rule 2, the Court has made a Mandatory Order, Prohibiting Order, Quashing Order or declaration, and the Court is satisfied that the applicant has a cause of action that would have entitled the applicant to any relevant relief if the relevant relief had been claimed in a separate action, the Court may, in addition, grant the applicant the relevant relief.

Before the amendments were made to this Order in 2011, no declaratory relief could be sought by an applicant in addition to the prerogative order(s) prayed for. The Judge, in this case, having examined the amended rules, particularly the rationale for the 2011 amendments, concluded that under O 53 the court is not permitted to grant standalone declaratory relief because: Order 53 r 1(1)(a) expressly labels an application for a declaration as being included in the “principal application” for a prerogative order; no specific leave is required in relation to the declaratory relief sought, thus preserving the distinction between prerogative orders and declaratory relief; the word “or” which appears before the word “declaration” in O 53 r 7(1) should not be construed as disjunctive; and in the premises, any declaratory order must be “appended to and contingent upon a prerogative order” (at [33] of the Judgment).

Locus standi

Before we proceed to deal with the procedural and substantive issues decided by the Judge, there is a preliminary but important concern, raised by the Attorney-General, which must be addressed – the Appellant’s locus standi to seek the declaratory relief. The Judge granted the Appellant leave to apply for judicial review on 3 April 2012; at that point in time the by-election in Hougang SMC had yet to be called, and there was then no definite indication as to when it would occur although the Prime Minister did in the statement issued on 9 March 2012 declare that he intended to call an election to fill the vacancy. The Attorney-General did not dispute the Appellant’s locus standi at the leave hearing (see Vellama d/o Marie Muthu v Attorney-General [2012] 2 SLR 1033 at [11]). However, in submissions before the High Court, the Attorney-General contended that the Appellant no longer had the requisite locus standi to seek declaratory relief as, the by-election having been held, she had ceased to have a real interest in continuing with the proceedings.⁵ The Attorney-General again invited this court to revisit the issue of locus standi in the determination of the present appeal.

This raises the potentially vexing problem of whether the Appellant had standing to continue seeking a declaration under O 53 of the Rules of Court given that the factual substratum for her claim had collapsed by 9 May 2012 when the Prime Minister announced the Hougang SMC by-election. At its root, this is a question about whether standing should be regarded as having crystallised at the point of time when proceedings are initiated, or whether it should instead be treated as a live issue open to review at every stage of the proceedings.

The point of crystallisation

The Judge relied on the decision of Buckley J in Gibson v Union of Shop, Distributive and Allied Workers [1968] 1 WLR 1187 (“Gibson”) for the proposition that subsequent events will not affect an applicant’s right for his case to be tried (at [118] of the Judgment). The Attorney-General has countered with multiple authorities where the English courts have dismissed applications which were either overtaken by events or no longer of practical benefit...