A Place To Stand To Move The Earth Stand

Dr Jack Tsen-Ta Lee
http://jacklee.info
29 September 2020, published December 2020
A Place to Stand to Move the

Earth: Standing and the
Rule of Law
Jack Tsen-Ta Lee*
* LLB (Hons) (Nat’l University of Singapore), LLM (UCL, Lond); PhD

(B’ham); Advocate & Solicitor (Singapore), Solicitor (England & Wales).
© 2020. This is a post-print version of an article published as [2020] Singapore Journal

of Legal Studies 367–391. It may be obtained from SelectedWorks at
https://works.bepress.com/jacklee/71/ and the Social Sciences Research Network at
http://ssrn.com/abstract=3772926.
A Place to Stand to Move the Earth:
Standing and the Rule of Law
Jack Tsen-Ta Lee*
It has been said that rules relating to standing (locus standi) in public law try to resolve
the conflict between the “desirability of encouraging people to participate actively in
the enforcement of the law” and the “undesirability of encouraging meddlesome
interlopers invoking the jurisdiction of the courts in matters in which they are not
concerned”. Nonetheless, standing rules that are excessively restrictive may result in
certain forms of governmental action being virtually immune from judicial scrutiny.
This article argues that recasting the standing rules to focus on an applicant’s suitability
to bring a claim and whether the claim is sustainable on its merits accords better with
the courts’ role as a check on the political branches of government and their duty to
uphold the rule of law.
THE RULES RELATING to standing, or locus standi, in public law are said to exist for the
purpose of resolving the conflict between “the desirability of encouraging people to
participate actively in the enforcement of law, and the undesirability of encouraging
meddlesome interlopers invoking the jurisdiction of the courts in matters in which
they are not concerned”. 1 In England and Wales, there has been a tendency over
several decades for courts to shift from emphasizing the latter towards the former. The
trend in Singapore up to the 2010s was similar, whereupon the courts made a marked
shift towards a more restrictive stance. This article begins in Part I by taking a
historical perspective, looking at the evolution of standing rules in England and
Singapore applicable to quashing and prohibiting orders, mandatory orders and
declarations.
Part II then examines the current test for standing established by the Court of
Appeal in a trilogy of cases decided between 2012 and 2014, noting in particular the
Court’s move to apply the more stringent standing test that had hitherto been applied
only to declarations to prerogative orders as well. Some difficulties that the test gives
rise to are also identified. Finally, Part III considers the justifications highlighted by
the Court for its stricter approach, but argues that recasting the standing rules to focus
on an applicant’s suitability to bring a claim and whether the claim is sustainable on
* LLB (Hons) (NUS), LLM (UCL, Lond), Phd (B’ham); Advocate & Solicitor (Singapore), Solicitor
(England & Wales). I would like to thank Chia Chen Wei for his research assistance, and dedicate
this article to my former students for constantly provoking fresh insights through their comments
and questions.
1 Harry Woolf, Jeffrey Jowell, Andrew Le Sueur, Catherine Donnelly & Ivan Hare, “Claimants,
Interested Parties and Interveners” in De Smith’s Judicial Review (7th ed) (London: Sweet &
Maxwell, 2015) at 66–67, [2-002].
1
Lee: A Place to Stand to Move the Earth: Standing and the Rule of Law …2
its merits accords better with the courts’ role as a check on the political branches of
government and their duty to uphold the rule of law.
I. THE EVOLUTION OF STANDING RULES
A. REMEDIES AVAILABLE IN PUBLIC LAW CASES
The applicable rules of standing used to vary depending on the remedy sought. In
England and Wales prior to 1977, when some action or decision of a public authority –
including the act of promulgating subsidiary legislation – was challenged in the courts
by way of judicial review for being in breach of administrative law rules (and, in the
case of subsidiary legislation, also for incompatibility with the parent Act), the
aggrieved person could either apply to the Chancery Division of the High Court for the
equitable remedy of a declaration or injunction, or to a divisional court of the Queen’s
Bench Division for one of the prerogative writs – namely, a writ of certiorari, habeas
corpus ad subjiciendum, mandamus, prohibition, or quo warranto. In Singapore,
with effect from 1 January 2006 the first four writs referred to in the preceding
sentence, now called “prerogative orders”, were respectively renamed the quashing
order, order for review of detention, mandatory order, and prohibiting order; the writ
of quo warranto was omitted from the list. 2 Our discussion will focus on the
declaration, mandatory order, prohibiting order, and quashing order. By virtue of the
Government Proceedings Act injunctions are not available as a remedy against the
Government, though a court may grant a declaration instead,3 or issue a mandatory or
prohibiting order where appropriate.
Judicial review of executive action on the basis of alleged incompatibility with
the terms of a written constitution is unknown in England but clearly available in
Singapore,4 and it has been assumed by the courts that prerogative orders may be
granted in such cases.5 Where provisions of primary legislation are concerned, there
2 Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”), 1st Sch, para 1, as amended by
the Statutes (Miscellaneous Amendments) (No 2) Act 2005 (No 42 of 2005), s 6 read with the 4th
Sch. See also the Interpretation Act (Cap 1, 2002 Rev Ed), s 41B (“Renaming of prerogative orders
or writs”), inserted by the Statutes (Miscellaneous Amendments) (No 2) Act 2005, s 2.
3 Government Proceedings Act (Cap 121, 1985 Rev Ed) (‘GPA’), s 27(1)(a): “In any civil proceedings
by or against the Government the court shall, subject to the provisions of this Act, have power to
make all such orders as it has power to make in proceedings between private persons, and otherwise
to give such appropriate relief as the case may require: Provided that — (a) where in any proceedings
against the Government any such relief is sought as might in proceedings between private persons
be granted by way of injunction or specific performance, the court shall not grant an injunction or
make an order for specific performance, but may in lieu thereof make an order declaratory of the
rights of the parties”. The term civil proceedings is defined in s 2(2) of the Act to include
“proceedings for judicial review”.
4 See, for example, Chan Hiang Leng Colin v Public Prosecutor [1994] 3 SLR(R) 209 at 231, [50], HC
(emphasis added): “The court has the power and duty to ensure that the provisions of the
Constitution are observed. The court also has a duty to declare invalid any exercise of power,
legislative and executive, which exceeds the limits of the power conferred by the Constitution, or
which contravenes any prohibition which the Constitution provides.”
5 The High Court has power to issue prerogative orders “to any person or authority […] for the
enforcement of any right conferred by any written law or for any other purpose”: SCJA, above, n 2,
1st Sch, para 1. In Vellama d/o Marie Muthu v Attorney-General [2012] 2 SLR 1033, HC, [2012] 4
SLR 698, HC, and [2013] 4 SLR 1, CA (“Vellama”), neither the High Court nor Court of Appeal took
objection per se to the claimant’s application for a mandatory order requiring the Prime Minister
to advise the President to issue a writ of election for a by-election to be held, on the ground that the
Prime Minister had allegedly misconstrued Art 49(1) of the Constitution of the Republic of
have been no local attempts to impugn the process by which Parliament has enacted
the legislation as being out of line with administrative law rules, for example, if
irrelevant considerations were taken into account by legislators. Cases from the UK
suggest that legal challenges of this sort are impermissible. In Edinburgh and Dalkeith
Railway Company v Wauchope,6 Lord Campbell expressed surprise that an Act could
be “held inoperative by a Court of Justice because the forms prescribed by the two
Houses to be observed in the passing of a bill have not been exactly followed”,7 saying:8
All that a Court of Justice can do is to look to the Parliamentary roll: if from that it
should appear that a bill has passed both Houses and received the Royal assent, no
Court of Justice can inquire into the mode in which it was introduced into Parliament,
nor into what was done previous to its introduction, or what passed in Parliament
during its progress in its various stages through both Houses.
More recently, in Prebble v Television New Zealand,9 the Privy Council stated: “So far
as the courts are concerned they will not allow any challenge to be made to what is said
or done within the walls of Parliament in performance of its legislative functions and
protection of its established privileges”.10 Whether these cases apply in the light of
Singapore’s written Constitution will require consideration by the court when the
matter arises. In the meantime, it appears that in such cases the only (or at least
primary) remedy 11 available may be a declaration that the statutory provision is
unconstitutional and, consequently, void and of no legal effect on its terms rather than
upon some lack of compliance by Parliament with administrative law rules during its
enactment.12
This article assumes that the same standing test applies to administrative and
constitutional law claims. Somewhat surprisingly, the courts have not established the
point conclusively because the major cases articulating standing rules have all been
constitutional law ones, though there is at least one administrative law case – Cheong
Chun Yin v Attorney-General13 – where the current standing test was applied without
much discussion of it. There does not seem to be any compelling reason for the courts
to apply different tests to the two strands of claims.
Singapore (1985 Rev Ed, 1999 Rep) (“Constitution”). The remedy was ultimately not granted as the
Court of Appeal found that the claimant lacked standing. Among other reasons, the by-election had
already been held by the time the appeal was heard.
6 (1842) 8 Cl & F 710, 8 ER 279, HL, cited in British Railways Board v Pickin [1974] AC 765 at 786–
787 per Lord Reid, and at 790–791 per Lord Morris of Borth-y-Gest, HL.
7 Id, 8 Cl & F at 724, 8 ER at 284.
8 Id, 8 Cl & F at 725, 8 ER at 285.
9 [1995] AC 321, PC (on appeal from New Zealand).
10 Id at 332.
11 The applicability in Singapore of remedies that have been granted in other jurisdictions such as an
order giving temporary validity to an unconstitutional statutory provision (Re Manitoba Language
Rights [1985] 1 SCR 721, SC (Can)) or a declaration that a provision is incompatible with a
constitutional text not amounting to an invalidation of the provision (for instance, similar to one
issued pursuant to the Human Rights Act 1998 (c 42) (UK), s 4) is beyond the scope of this article.
12 Quaere, though, whether cases such as Edinburgh and Dalkeith Railway Company (above, n 6)
and Prebble (above, n 9) stand for the proposition that the Singapore courts are powerless to set
aside primary legislation not enacted according to the procedure set out in the Constitution or in
the Standing Orders of Parliament – for instance, if a bill has only undergone two instead of the
requisite three readings, or has been voted upon despite objection having been taken to the lack of
a quorum in the House (Constitution, above, n 5, Art 56).
13 [2014] 3 SLR 1141 at 1147–1148, [15]–[16], and 1151–1152, [28]–[34], HC.
B. STANDING RULES BEFORE 2012: TOWARDS LIBERALIZATION
From the 19th century up to the 2010s, there was a dearth of local reported cases
addressing the issue of the standing requirements for various remedies in public law
matters. However, such cases as exist broadly indicate that the Singapore courts
tracked the developments that took place in England, include the increasing
liberalization of the standing rules.
1. Prerogative Orders
As mentioned previously, the mandatory, prohibiting and quashing orders, together

with the order for review of detention, are known as prerogative orders.14 They were
termed ‘prerogative’ as originally the Crown and no one else could seek them from the
court. However, by the end of the 16th century it was common for the courts to allow
ordinary subjects of the Crown aggrieved by allegedly unlawful acts on the part of
public authorities to apply for prerogative writs in the Crown’s name without having
to obtain permission;15 “[t]he Crown lent its legal prerogatives to its subjects in order
that they might collaborate to ensure good and lawful government”.16
(1) Prohibiting and Quashing Orders
Since in England applications for prerogative orders are brought in the Crown’s name,
and the Crown is deemed to always have standing to act against public authorities,
including its own ministers, who have failed to comply with the law, the standing
requirements for prohibiting and quashing orders (formerly the writs of prohibition
and certiorari) have long been fairly liberal.17 Referring to certiorari, in R v Thames
Magistrates’ Court, ex parte Greenbaum18 Parker LJ said:19
Anybody can apply for it – a member of the public who has been inconvenienced, or a
particular party or person who has a particular grievance of his own. If the application
is made by what for convenience one may call a stranger, the remedy is purely
discretionary. Where, however, it is made by a person who has a particular grievance
of his own whether as a party or otherwise, then the remedy lies ex debito justitiae.
In other words, when a person is the subject of an executive act or decision, that person
has standing to apply for a prohibiting or quashing order ex debito justitiae (as of
right).20 Where the applicant is someone who is not the direct subject of such an act or
14 A term retained in the SCJA, above, n 2, 1st Sch, para 1.

15 Hence the practice of naming the Crown as the applicant in such cases using the Latin words Regina
(Queen) or Rex (King), often abbreviated to R, for example, R v Secretary of State for Foreign and
Commonwealth Affairs, ex parte World Development Movement Ltd, below, n 68.
16 Wade & Forsyth, “Prerogative Remedies” in Administrative Law (11th ed) (Oxford: Oxford
University Press, 2014) (‘Wade & Forsyth (11th ed)’), 500 at 500.
17 William Wade & Christopher Forsyth, “Restriction of Remedies”, Administrative Law (10th ed)
(Oxford: Oxford University Press, 2010) (‘Wade & Forsyth (10th ed)’), 582 at 585–586.
18 (1957) 55 LGR 129.
19 Id at 135.
20 The court retains discretion to deny the remedy in appropriate cases, such as if there has been an
undue delay on the part of the applicant in seeking the remedy: Wade & Forsyth (10th ed), above,
n 17 at 586.
decision but is nonetheless inconvenienced by it in some way – a “stranger” – the court

has a discretion whether to regard him or her as having standing.
That this liberal position on standing applied in Singapore was confirmed by
the High Court in Chan Hiang Leng Colin v Minister for Information and the Arts.21
The Minister had issued an order under the Undesirable Publications Act22 banning
the importation, sale and distributions of materials published by the International
Bible Students Association (‘IBSA’), an organization associated with Jehovah’s
Witnesses. The applicants, who were Jehovah’s Witnesses, sought a certiorari (among
other things) to quash the order on the grounds that it was ultra vires the Act and also
violated various provisions of the Constitution.23 The Attorney-General, representing
the Minister, argued that only officeholders of the IBSA had locus standi to challenge
the order, and that since the applicants were neither officeholders nor members of the
Association they lacked standing.24
The High Court cited with approval the passage from Greenbaum quoted
earlier, 25 and also the following passage by Lord Denning MR from R v Greater
London Council, ex parte Blackburn:26
I regard it as a matter of high constitutional principle that if there is good ground for
supposing that a government department or a public authority is transgressing the law,
or is about to transgress it, in a way which offends or injures thousands of Her Majesty’s
subjects, then anyone of those offended or injured can draw it to the attention of the
courts of law and seek to have the law enforced and the courts in their discretion can
grant whatever remedy is appropriate.
In Blackburn, the Court of Appeal of England and Wales found that the applicants, a
husband and wife, possessed sufficient standing to challenge the alleged failure of the
Greater London Council to properly censor films which the applicants regarded as
obscene – they were British citizens who lived within the Council’s jurisdiction, the
wife was a ratepayer, and they had children who might be adversely affected by
watching pornographic films.27 Speaking of the husband, Lord Denning MR said: “If
he has no sufficient interest, no other citizen has.”28
Having thus established “it was relatively easy to establish the standing
necessary to ask for an order of certiorari. […] It was sufficient that there had been an
abuse of power which inconvenienced someone”, 29 the High Court in Chan Hiang
Leng Colin determined that the applicants had standing in the case. The Minister’s
order had impinged on their ability to access materials relevant to their religion, and
they had a constitutional right to practise their religion guaranteed by Article 15(1) of
the Constitution. 30 Moreover, the applicants were facing criminal prosecutions for
possessing IBSA materials banned by the order. The Court held it was “unarguable”
21 [1995] 2 SLR(R) 627, HC (‘Chan Hiang Leng Colin (HC)’).

22 Cap 338, 1985 Rev Ed (now 1998 Rev Ed).
23 Now the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Rep): see Chan Hiang Leng
Colin (HC), above, n 21 at 629–630, [1]–[3].
24 Id at 634, [14].
25 Greenbaum, above, n 19 at 135. The High Court cited a passage from H R W Wade, Administrative
Law (4th ed) (Oxford: Clarendon Press, 1979) at 544 in which the quotation from Greenbaum was
quoted: Chan Hiang Leng Colin (HC), id at 632–633, [11].
26 [1976] 1 WLR 550 at 559, CA (England & Wales), cited in Chan Hiang Leng Colin (HC), id at 633,
[12].
27 Blackburn, id at 558–559 per Lord Denning MR and at 564 per Stephenson LJ.
28 Id at 559.
29 Chan Hiang Leng Colin (HC), above, n 23 at 633, [12].
30 Constitution, above, n 23: see Chan Hiang Leng Colin (HC), id at 634, [17].
that a person in their position “had such an interest in the legality of the order […] as
to imbue him with the necessary standing to challenge the order. Not only would he
be directly affected by the order but there would be a clear relationship between his
interest and the nature of the remedy he sought.”31
When the case was appealed to the Court of Appeal,32 that Court largely agreed
with the High Court. It also cited with approval the passage from Blackburn by Lord
Denning,33 and held that the fact that the applicants were complaining of a violation
of their rights under Article 15 of the Constitution was sufficient to give them
standing:34 “If a citizen does not have sufficient interest to see that his constitutional
rights are not violated, then it is hard to see who has.”35 However the Court also said,
rather cryptically, that it was unable to agree with the High Court:36
[…] that the fact that the appellants were facing prosecution for being in possession of
prohibited publications under the Undesirable Publications Act also gives them locus
standi. We think that this is an irrelevant consideration in an application for leave to
issue certiorari proceedings.
The reasoning here is somewhat hard to follow, because a person subject to criminal
proceedings brought on the strength of an allegedly unlawful order by a public
authority would appear to be a prime example of someone who has a particular
grievance against that authority. In a subsequent case, Tan Eng Hong v Attorney-
General, 37 the Court of Appeal took the above passage to mean that since the
applicants already possessed standing by virtue of the alleged violation of their
constitutional rights, it was irrelevant whether criminal proceedings had been taken
against them.38 Put another way, the High Court did not mean to say that a criminal
prosecution can never be relied on as a basis for standing; rather, “a prosecution under
an allegedly unconstitutional law should not be a necessary requirement for standing
in an action to declare that law unconstitutional”.39
Moreover, the Court of Appeal noted that if a person has been arrested or
detained for a supposed breach of an unconstitutional law, this would amount to a
violation of his or her right to personal liberty guaranteed by Article 9(1). Thus, the
person could also claim standing to challenge the allegedly unconstitutional law on the
basis of a potential breach of Article 9(1).40 The parallel between this scenario and the
situation in Chan Hiang Leng Colin is unmistakable.
What we see from the Singapore cases described above is that while they
involved applicants who were found to have standing to apply for quashing orders
because they were directly affected by the actions of public authorities, the courts
nonetheless took the view that, as in England, a potentially broad range of persons
should be accorded standing. While in cases involving prohibiting orders the courts
have not had to consider whether the applicants had standing,41 the High Court’s views
31 Chan Hiang Leng Colin (HC), id at 634, [15]–[16].

32 Chan Hiang Leng Colin v Minister for Information and the Arts [1996] 1 SLR(R) 294, CA (‘Chan
Hiang Leng Colin (CA)’). See also Comptroller of Income Tax v ACC [2010] 2 SLR 1189, CA.
33 Id at 299, [10].
34 Id at 299–300, [13]–[15].
35 Id at 300, [14].
36 Id at 301, [19].
37 [2012] 4 SLR 476, CA.
38 Id at 516, [89].
39 Ibid.
40 Id at 525, [122].
41 Examples of such cases include Che Him v Robertson (1808–1884) [1859] 1 Ky 131, SC (Straits
Settlements); In the Matter of an Application for a Writ of Prohibition and in the Matter of the
on standing in Chan Hiang Leng Colin were clearly directed at both prohibiting and
quashing orders.42
(2) Mandatory Orders
It would be fair to assume that the standing test applying to mandatory orders should
be no different from that applicable to prohibiting and quashing orders. However, in
England, the case of R v The Guardians of the Lewisham Union 43 led to a line of
restrictive decisions holding that an applicant is only entitled to a mandamus if he or
she has a “legal specific right to ask for the interference of the Court”.44 Later, a gloss
was added that the test was “far more stringent” than the test applying to quashing
orders,45 though it appears that the courts never clearly articulated a reason for the
divergence.46
On the other hand, there were cases that continued to adopt a broader approach
to standing. These required only that the applicant show a “sufficient interest”. 47
Sometimes it was said that an applicant needed to establish a “special interest” greater
than that of other members of the public;48 nonetheless, the courts did not require
proof of much interest to establish standing. For example, in R v Cotham,49 the vicar
of a parish and some of his parishioners were held to “clearly” have sufficient interest
in seeking a mandamus directing licensing justices to conduct a hearing to determine
whether a licence to sell beer at premises within the parish had been legally transferred
from one person to another.50
Locally, the broader approach was adopted in the Straits Steamship Co, Ltd v
Owen,51 though on the facts of the case even the narrower approach would probably
have been satisfied. 52 In this case, the claimant sought sanction from the Harbour
Singapore Improvement Ordinance (1927) [1935] SSLR 420, SC (Straits Settlements); Estate and
Trust Agencies (1927), Ltd v Singapore Improvement Trust [1937] AC 898, [1937] SSLR 109, PC
(on appeal from Singapore); and Re Fong Thin Choo [1991] 1 SLR(R) 774, HC.
42 Chan Hiang Leng Colin (HC), above, n 21 at 632–633, [11]–[13].
43 [1897] 1 QB 498, Div Ct (England & Wales).
44 Id at 500 per Wright J; see also at 501 per Bruce J (using the same expression “legal specific right”).
45 R v Hereford Corporation, ex parte Harrower [1970] 1 WLR 1424 at 1428, HC (England & Wales);
and see also R v Russell, ex parte Beaverbrook Newspapers Ltd [1969] 1 QB 342 at 348, Div Ct
(England & Wales) (“So far as certiorari is concerned, the matter is really perfectly clear. They are
certainly a person aggrieved so as to be able to make this application. So far as mandamus is
concerned, the test may well be stricter, […]”).
46 Wade & Forsyth (10th ed), above, n 17 at 588.
47 R v Manchester Corporation [1911] 1 KB 560 at 563, Div Ct (England & Wales) per Lord Alverstone
CJ; see also Huang Su Mien, “Judicial Review of Administrative Action by the Prerogative Orders”
(1960) 2(1) U Malaya L Rev 64 at 67 (an applicant who can prove a “sufficient legal interest” in the
performance of some legal duty can enforce it by mandamus).
48 Manchester Corporation, id at 563–564 per Pickford J.
49 [1898] 1 QB 802, Div Ct (England & Wales).
50 Id at 804.
51 [1932] MLJ 167, CA (Straits Settlements).
52 See also Mundell v Mellor [1929] SSLR 152, SC (Straits Settlements), where the applicant would
probably have been found to have standing on either approach. Following a fatal accident in a soap
factory, a partner of a firm of consulting engineers having charge of the factory was summoned to
testify at an inquiry convened to investigate the incident pursuant to an ordinance. The partner
sought to have his advocate attend with him, but the latter was refused a right of audience. The
advocate then applied for mandamus. The Supreme Court of the Straits Settlements held that the
partner had locus standi before the inquiry at common law since “he was summoned before the
tribunal to be examined touching matters with regard to which it was of the utmost consequence to
him what view the tribunal might take of his conduct in relation thereto” (id at 158) – under the
Master to prefer a criminal charge against the owner of a steamship called the Kim
Kean Aun for not being manned with a full complement of properly certified officers
as required by a merchant shipping ordinance. However, the Harbour Master declined
to accede to the request. Upon the question of whether the claimant had sufficient
interest to apply for a mandamus against the Harbour Master, the Straits Settlements
Court of Appeal cited the Cotham 53 test of a “sufficient specific interest” and,
disagreeing that the claimant was no better than a common informer, expressed the
view that he was in a much stronger position than the applicant in that case.54 In fact
the claimant was “peculiarly interested” in the proper exercise of the Harbour Master’s
discretion,55 and had a “special interest”56 in seeking a mandamus since it was alleging
that the Kim Kean Aun posed a navigational danger to, and was also competing
unfairly with, the claimant’s own ships.
In England, the move away from the Lewisham line of cases continued. For
instance, in R v Commissioner of Police of the Metropolis, ex parte Blackburn (No
3),57 two members of the public, a husband and wife, alleged that the Metropolitan
Police Commissioner had not properly enforced the law relating to the publication and
sale of pornography, and sought a mandamus to compel him to do so. While the Court
of Appeal decided that the writ should not issue because it was not for the courts to
interfere with how the police carried out their duties, it took no objection to the
applicants’ standing. Lord Denning MR even remarked that Mr Blackburn, who
appeared in person, “has served a useful purpose in drawing the matter to our
attention”.58
With effect from 11 January 1978, Order 53 of the Rules of the Supreme Court
1965 (UK)59 was amended;60 rule 3(1) now provided that “[n]o application for judicial
review shall be made unless the leave of the Court has been obtained in accordance
with this rule”, while rule 3(5) stated: “The Court shall not grant leave unless it
considers that the applicant has a sufficient interest in the matter to which the
application relates.” In R v Inland Revenue Commissioners, ex parte National
Federation of Self-Employed and Small Businesses Ltd (the IRC case),61 a majority of
the House of Lords affirmed that Lewisham was no longer good law – Lord Scarman
relevant ordinance, an engineer involved in causing a fatal accident might be prohibited from being
in charge of machinery, and an engineer or driver might have his certificate of competency
suspended or cancelled. In the circumstances, the partner had a right to appoint an advocate to
speak for him.
53 Above, n 49.
54 Straits Steamship Co, above, n 51 at 170, col 1. The Chief Justice also noted that in Manchester
Corporation, above, n 47, the applicants were held to have had a “sufficient interest”, and concluded
that on the facts it was “undeniable” that the claimant’s “special interest” was “definitely
established”: ibid.
55 Id at 171, col 1, per Thorne Ag CJ.
56 Id at 171, col 2, and at 174, col 2, per Terrell J.
57 R v Metropolitan Police Commissioner, ex parte Blackburn (No 3) [1973] QB 241, CA (England &
Wales). In an earlier case brought by the same applicant, R v Metropolitan Police Commissioner,
ex parte Blackburn [1968] 2 QB 118, the Court of Appeal left open the question of whether he had
sufficient standing to seek a mandamus against the Police Commissioner for failing to enforce a
gaming law (at 137 per Lord Denning MR, and at 145 per Salmon LJ); Edmund-Davies LJ opined
that “[i]t may be that a private citizen, such as the applicant, having no special or peculiar interest
in the due discharge of the duty under consideration, has himself no legal right to enforce it” (at
149).
58 Ex parte Blackburn (No 3), id at 254.
59 1965 III, p 4995 (UK).
60 By The Rules of the Supreme Court (Amendment No 3) 1977 (SI 1977 No 1955 (L 30), UK), r 5.
61 [1982] AC 617, HL (UK).
termed it “heresy” and a “deplorable decision”62 – and that the common locus standi
test of a “sufficient interest” applied, whether a prerogative order, declaration or
injunction was sought.
As to what constituted a “sufficient interest”, it was neither a direct financial or
legal interest nor the “legal specific interest” required by the now-discredited
Lewisham case. On the other hand, a “mere busybody” did not have sufficient
interest.63 Three of the five judges of the House of Lords felt it was necessary for the
statute empowering the public authority to either expressly or impliedly give the
applicant the right to complain that the authority had acted unlawfully, for the
applicant to have a sufficient interest in seeking judicial review.64 Lord Diplock took
the broadest stance, saying:65
It would, in my view, be a grave lacuna in our system of public law if a pressure group,
like the federation, or even a single public-spirited taxpayer, were prevented by
outdated technical rules of locus standi from bringing the matter to the attention of the
court to vindicate the rule of law and get the unlawful conduct stopped.
It is also significant that four of the judges affirmed that standing should be
assessed in the light of the legal and factual context of the case, and not abstractly.66
If, considering this context, the applicant can make out a prima facie case of
reasonable suspicion that the public authority has acted unlawfully, the applicant
should be regarded as having standing. 67 This point has been emphasized in
subsequent cases. For instance, in R v Secretary of State for Foreign and
Commonwealth Affairs, ex parte World Development Movement Ltd,68 the Divisional
Court stated that “the merits of the challenge are an important, if not dominant, factor
when considering standing”.69
Developments in Singapore mirrored those in England. In Re Lim Chor Pee, ex
parte Law Society of Singapore,70 the Court of Appeal followed the IRC case and held
that the standing test for a mandamus was no longer that stated in Lewisham, but was
simply the presence of a “sufficient interest”. 71 We have already encountered Chan
Hiang Leng Colin,72 a certiorari case. There, the High Court noted that unlike Order
53 of the Rules of the Supreme Court 1965 (UK),73 Order 53 of Singapore’s Rules of the
Supreme Court74 made no mention of a “sufficient interest”. Thus, the Court should
look to the legal position existing before the change in the UK Rules.75
Nonetheless, the High Court recognized the IRC case established that at
common law English courts had already treated the standing test for a mandamus as
the same as the test applying to writs of certiorari and prohibition 76 – “[i]t was
62 Id at 653.
63 Id at 646 per Lord Fraser of Tullybelton, and at 653 per Lord Scarman.
64 Id at 631 per Lord Wilberforce, 646 per Lord Fraser, and at 662–663 per Lord Roskill.
65 Id at 644.
66 Id at 630 per Lord Wilberforce, and at 656 per Lord Roskill.
67 Id at 643 per Lord Diplock, and at 653 per Lord Scarman.
68 [1995] 1 WLR 386, Div Ct (England & Wales).
69 Id at 395.
70 [1985–1986] SLR(R) 998, CA.
71 Id at 1013–1014, [43]–[45].
72 Above, n 21.
73 Above, n 59.
74 Rules of the Supreme Court (Cap 322, R5, 1990 Rev Ed), now the Rules of Court (Cap 322, R5, 2014
Rev Ed).
75 Chan Hiang Leng Colin (HC), above, n 21 at 632, [10].
76 Id at 632–633, [11]–[13].
Lee: A Place to Stand to Move the Earth: Standing and the Rule of Law … 10
sufficient that there had been an abuse of power which inconvenienced someone”.77
The Court also found helpful Lord Scarman’s observation in the IRC case to the effect
that “the sufficiency of the applicant’s interest had to be judged in relation to the
subject matter of his application”.78 This point was reiterated by the Court of Appeal
when the matter came before it.79
2. Declarations
The lack of Singapore cases seeking declarations that public authorities had acted
unlawfully makes it difficult to draw definitive conclusions about the strictness of the
standing requirements for the remedy in public law cases. The English locus classicus
is Gouriet v Attorney-General,80 in which the plaintiff sought, among other things,
declarations that postal worker unions were breaching certain statutes by calling on
their members to refuse to handle mail and messages between England and South
Africa in order to protest the practice of apartheid in the latter country. The plaintiff
would not have suffered any loss due to the strike action, and asserted only that he had
an interest, shared by all members of the public, in seeing that the law was adhered
to.81 Lord Wilberforce said:82
[T]here is no support in authority for the proposition that declaratory relief can be
granted unless the plaintiff, in proper proceedings, in which there is a dispute between
the plaintiff and the defendant concerning their legal respective rights or liabilities
either asserts a legal right which is denied or threatened, or claims immunity from some
claim of the defendant against him or claims that the defendant is infringing or
threatens to infringe some public right so as to inflict special damage on the plaintiff.
(Special damage is damage “over and above that sustained by the public at large”.83)
A similar conclusion was reached by the other House of Lords judges.84
Another passage from Gouriet by Lord Diplock was cited with approval in
Singapore Airlines Limited v Inland Revenue Authority of Singapore; 85 part of it
reads: “[T]he jurisdiction of the court is not to declare the law generally or to give
advisory opinions; it is confined to declaring contested legal rights, subsisting or
future, of the parties represented in the litigation before it and not those of anyone
else.”86 The plaintiff, which was administering a provident fund (the ‘SIA fund’) for its
employees, sought a declaration from the Singapore High Court that if it wound up the
SIA fund and transferred the moneys in employees’ accounts in the fund to
corresponding employees’ accounts in the government-operated Central Provident
Fund, this would not amount to premature withdrawals from the SIA fund which
would disentitle its employees from enjoying income tax exemptions on the moneys.
77 Id at 633, [12].
78 Id at 633, [13].
79 Chan Hiang Leng Colin (CA), above, n 32 at 299, [11]–[12].
80 [1978] AC 435, HL (UK).
81 Id at 476.
82 Id at 483.
83 Id at 506.
84 Id at 494–495 per Viscount Dilhorne, at 501 per Lord Diplock, at 515 per Lord Edmund-Davies,
and at 522–523 per Lord Fraser of Tullybelton.
85 [1999] 2 SLR(R) 1097, HC. An appeal against this judgment was dismissed by the Court of Appeal
without reasons being given.
86 IRC case, above, n 80 at 501 (emphasis added), quoted in Singapore Airlines, id at 1103, [27].
The Court found that the plaintiff lacked standing for the declaration, as it was
the plaintiff’s employees who were liable to pay any income tax. If employees disputed
the imposition of any tax, they should bring the matter before the Income Tax Board
of Review as provided for in the Income Tax Act.87 Although Order 15, rule 16, of the
Rules of Court 88 provides that “the Court may make binding declarations of right
whether or not any consequential relief is or could be claimed”, this did not mean that
“all and sundry” could seek declarations; rather, such an order “can be sought only by
persons who have a right to enforce against a defendant or by persons who say that he
himself is not liable”.89
Gouriet was applied again, this time by the Singapore Court of Appeal, in
Karaha Bodas Co LLC v Pertamina Energy Trading Ltd.90 The case’s importance will
become evident shortly. The issue relevant to our discussion was whether the plaintiff
could obtain a declaration that a Singapore company, PES, held a sum of about US$36
million it had received from Petral, its parent company, on trust for Petral. Petral was
a subsidiary of the defendant against whom the plaintiff had secured an arbitration
award, and the plaintiff had obtained a garnishee order against Petral for debts due
from Petral to the defendant. The plaintiff suspected that Petral had transferred the
money to PES to evade the garnishee order.
The Court of Appeal noted that, among other things, “the plaintiff must have
locus standi to bring the suit and there must be a real controversy for the court to
resolve”.91 As regards locus standi, the Court stated that for the plaintiff to possess the
necessary standing to obtain a declaration, “the plaintiff must be asserting the
recognition of a ‘right’ that is personal to him”.92 On the facts, the plaintiff had failed
to establish either of these elements.
The Court recognized that the English Court of Appeal had taken a more flexible
approach to standing in Re S (Hospital Patient: Court’s Jurisdiction).93 Millett LJ had
expressed the view that “[p]rovided that the legal right in question is contested by the
parties, however, and that each of them would be affected by the determination of the
issue, I do not consider that the court should be astute to impose the further
requirement that the legal right in question should be claimed by either of the parties
to be a right which is vested in itself”.94 However, the Singapore Court felt there was
“no compelling reason” to depart from Gouriet.95 A key reason was that Order 15, rule
16, of the Singapore Rules of Court refers to the court making declarations “of right”
while Part 40.20 of the Civil Procedure Rules (UK),96 which had replaced the provision
of the Rules of the Supreme Court (UK) equivalent to the Singapore provision, lacks
this term. Thus, while some commentators had taken the view that Re S is more
consonant with Part 40.20, this reasoning was inapplicable to Singapore.97
Up to the 2000s, therefore, while the local standing rule for prerogative orders
generally tracked the English position, it appears that applicants who sought
87 Cap 134, 1996 Rev Ed, now the 2014 Rev Ed.
88 Above, n 74.
89 Singapore Airlines, above, n 85 at 1101, [23].
90 [2006] 1 SLR(R) 112 at 119, [13], and at 120–121, [15], CA.
91 Id at 120, [14].
92 Id at 120, [15].
93 [1996] Fam 1, CA (England & Wales).
94 Id at 22.
95 Karaha Bodas, above, n 90 at 126, [25].
96 The Civil Procedure Rules 1998 (SI 1998 No 3132 (L 17)) (UK) as amended by The Civil Procedure
(Amendment) Rules 2001 (SI 2001 No 256 (L 7)) (UK), Part 40.20: “The court may make binding
declarations whether or not any other remedy is claimed.”
97 Karaha Bodas, above, n 90 at 125–126, [24]–[25].
declarations needed to possess some personal legal right rather than merely a
sufficient interest in order to establish standing. While the English rule had changed
in 1978, with the amended Order 53 of the Rules of the Supreme Court (UK) applying
a uniform “sufficient interest” test to prerogative orders and declarations, in Singapore
Order 15, rule 16, of the Rules of Court continues to refer to “declarations of right”.
However, it is notable that in none of the cases discussed above was the remedy
sought in the nature of a declaration that a public authority was or would be acting
unlawfully. In Gouriet and Karaha Bodas the declarations respectively concerned
trade unions and private companies. Although in Singapore Airlines the defendants
were both government agencies, the plaintiff was simply seeking the High Court’s
interpretation of a provision in the Income Tax Act. In the IRC case members of the
House of Lords took pains to point out that Gouriet, as a case not involving any
exercise of governmental powers, was irrelevant to the standing test applicable to
prerogative orders, particularly after Order 53 of the Rules of the Supreme Court (UK)
made the declaration a remedy available in public law cases.98 The view has been taken
that Gouriet “ought to be confined to its peculiar subject matter, which is the use of
civil proceedings for the purpose of enforcing the criminal law. This is a highly
abnormal procedure and there may be good reasons for allowing only the Attorney-
General to employ it.”99
One might therefore ask if the courts would have extended to declarations the
standing test applying to prerogative if they had been presented with a typical public
law claim. In that context, the word right in Order 15, rule 16, might have been
construed as referring to a general right to see that a public authority complies with
the law, rather than a personal legal right.
II. THE CURRENT STANDING RULE
A. THE STANDING RULE UNIFIED IN AN UNEXPECTED DIRECTION
The present-day standing rule in public law was laid down by the Singapore Court of
Appeal in the 2010s in a trilogy of cases: Tan Eng Hong v Attorney-General, 100
Vellama d/o Marie Muthu v Attorney-General101 and Jeyaretnam Kenneth Andrew v
Attorney-General.102 In the last case, the Court summarized the law as follows:103
i. A public duty must have been breached – arguably, this relates to the
concept of amenability and is not, strictly speaking, part of the standing
test.
ii. The applicant will be found to have standing if the public duty generates
correlative private rights or public rights.
98 IRC, above, n 61 at 639 per Lord Diplock; at 649 per Lord Scarman; and at 657–658 per Lord
Roskill. Both Lord Diplock and Lord Roskill noted in particular that in Gouriet, above, n 80 at 482–
483, Lord Wilberforce had recognized that the courts allow applicants “liberal access under a
generous conception of locus standi” when seeking prerogative orders against public authorities.
99 “Ordinary Remedies” in Wade & Forsyth (11th ed), above, n 16 at 495.
100 Above, n 37.
101 Above, n 5.
102 [2014] 1 SLR 345, CA.
103 Id at at 371, [64].
iii. The applicant will not be found to have standing if the public duty
generates neither correlative private rights or public rights, except in the
rare case where the breach of public duty is regarded by the court as of
sufficient gravity that it would be in the public interest for the case to be
heard.
Another Court of Appeal decision is pertinent: Eng Foong Ho v Attorney-

General. 104 The members of a Buddhist association who worshipped at a temple
sought a declaration that the compulsory acquisition of the land on which the temple
stood violated their constitutional right to equality, because nearby lands belonging to
a Christian church and a Hindu organization were not similarly acquired. The
Attorney-General argued that since the applicants had sought a declaration instead of
a prerogative order, they had to satisfy a stricter test for locus standi.
The Court’s response was: “This argument has no merit whatsoever. […] In our
view, it does not matter what procedure the appellants have used. The substantive
elements of locus standi cannot change in the context of the constitutional protection
of fundamental rights.” 105 It found that the applicants did possess the necessary
standing to bring the case. The Court’s statement was, it is submitted, somewhat
bemusing as cases prior to Eng Foong Ho (not referred to in the judgment) had
determined that the tests for standing for declarations and prerogative orders were
different. One possible reading is that the Court meant the standing test for
declarations should now be regarded as the same as that for prerogative orders,
effectively rejecting the Karaha Bodas approach.
This was not, though, the conclusion subsequently drawn by the Court in Tan
Eng Hong. It said that Eng Foong Ho had intended “to unify the threshold of locus
standi for cases brought under O 15 r 16 and cases brought under O 53 r 1”,106 and by
this it meant that applicants have to “demonstrate a violation of or an injury to their
personal rights in order to be granted standing”. 107 Thus, the Court moved in an
unexpected direction, extending the stricter Gouriet and Karaha Bodas standing test
for declarations to prerogative orders, rather than applying the more liberal test for
prerogative orders established in the IRC and Chan Hiang Leng Colin cases to
declarations. The Court did not then articulate policy reasons for taking this stance,
though it did so in Vellama and Jeyaretnam which we will examine below.
The Court set out the Karaha Bodas standing requirements for an applicant
seeking a declaration as follows:108
(a) the applicant must have a “real interest” in bringing the action […];
(b) there must be a “real controversy” between the parties to the action for the court
to resolve […]; and
(c) the declaration must relate to a right which is personal to the applicant and which
is enforceable against an adverse party to the litigation […].
The separation of real interest (limb (a)) from a violation of a personal right (limb (c))
seems unwarranted. In the context of Tan Eng Hong – in which the constitutionality
104 [2009] 2 SLR(R) 542, CA.

105 Id at 547–548, [18].
106 Tan Eng Hong, above, n 37 at 512, [76].
107 Id at 513, [78].
108 Id at 511, [72].
of section 377A of the Penal Code,109 which criminalizes public or private sexual acts
between male persons, was challenged on the ground that, among other things, it
infringes the right to equality guaranteed by Article 12(1) of the Constitution – the
Court commented that citizens have a sufficient interest in ensuring their
constitutional rights are not violated.110 On the other hand, if a law provides that only
persons of a particular race are prohibited from taking public buses, then only persons
of that race would have suffered a violation of their Article 12 right and would have
standing to challenge the law.111 This is readily understandable, but if the concept of a
real interest thus means no more than the enjoyment of an abstract legal right in
constitutional or administrative law, then limb (a) adds nothing substantive. It
appears that only limb (c) is a necessary part of the test.
As for the limb (b), the Court of Appeal said that “the absence of a real
controversy does not invariably deprive the court of its jurisdiction, and the court may
exercise its discretion to hear hypothetical issues in appropriate cases”. 112 It is
submitted the articulation of a real controversy requirement as part of the standing
test creates a difficulty. On the facts of Tan Eng Hong, the Court said the applicant had
a real interest in bringing the claim and that his personal rights had been violated as
he had been arrested, investigated, detained and charged under an allegedly
unconstitutional Penal Code provision. Moreover, though the Prosecution had decided
not to proceed with that charge, the appellant faced a real and credible threat of
prosecution under section 377A in the future.113 The Court relied on the same facts to
show there was a real controversy to be decided,114 noting:115
[W]e are of the view that it can logically be said that where there is a real legal interest
in a case being heard, there is a real controversy to be determined. […] ‘Legal’ interest
is used here in contradistinction to a mere socio-political interest, and may be said to
arise where there is a novel question of law for determination, […]
Is there ever likely to be a situation where a real controversy is absent when there are
facts showing that an applicant has a real legal interest in bringing a claim and that the
applicant’s rights have arguably been violated? If not, what is the point of the real
controversy limb of the test?
B. DISTINGUISHING BETWEEN PRIVATE AND PUBLIC RIGHTS
In Tan Eng Hong, the Court of Appeal cited the Malaysian Supreme Court in
Government of Malaysia v Lim Kit Siang,116 where a declaration and an injunction
were sought, for the proposition that if an applicant claims a “public right” has been
infringed, “the applicant must 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”. The Court of Appeal explained that “a public right is one which is held and
109 Cap 224, 2008 Rev Ed.

110 Tan Eng Hong, above, n 37 at 514, [83]. Strictly speaking, the Constitution guarantees some
fundamental liberties to citizens only, and others to all persons; Art 12(1) states: “All persons are
equal before the law and entitled to the equal protection of the law.”
111 Id at 517, [93].
112 Id at 528, [137].
113 Id at at 531–544, [148]–[184].
114 Id at 544, [186].
115 Id at 530, [143] (original emphasis).
116 [1988] 2 MLJ 12 at 27, SC (Malaysia).
vindicated by public authorities, whereas a private right is one which is held and
vindicated by a private individual”.117
This can be understood by reference to Gouriet, where the House of Lords held
that where a public wrong has been committed, only the Attorney-General had
standing to sue on the public’s behalf, though he or she might permit an applicant to
bring a case in the Attorney-General’s name on a relator action.118 Otherwise, a claim
might only be brought in the applicant’s own name if the interference to the public
right caused the applicant to suffer special damage.119 This distinction between public
and private rights and its impact on standing was maintained in Vellama,120 the Court
of Appeal explaining that a public right is one the applicant “enjoys as one of the public,
or which any member of the public enjoys in common with” the applicant.121
Benjamin Joshua Ong has explained in a masterly survey of the relevant cases
various problems with the distinction between public and private rights, and it is
redundant for them to be repeated here. 122 However, the following points may be
observed. It is somewhat unclear whether a public right must be enjoyed by every
single member of the public in the jurisdiction or may be enjoyed only by a segment of
the public, as the Court also said:123
Public rights are shared in common because they arise from public duties which are
owed to the general class of affected persons as a whole. […] As public rights are shared
with the public in common, an applicant cannot have standing unless he has suffered
some ‘special damage’ which distinguishes his claim from those of other potential
litigants in the same class.
The passage seems to imply that a right can be a public right if only shared by a
segment of the public. If that is the case, then distinguishing between cases involving
private rights and public rights becomes subtle to the point of impracticality. This is
because the Court also recognized that when “the alleged interference with the public
interest […] affects an applicant’s private right, the court will recognise the applicant’s
standing to seek relief. This is so regardless of the existence of identical private rights
held by other potential litigants in the same class as the applicant”. 124 As Lord
Wilberforce put it in Gouriet: “A right is none the less a right, or a wrong any less a
wrong, because millions of people have a similar right or may suffer a similar
wrong”.125
One can appreciate the logic of this. A private right does not cease to be one just
because it may be asserted by persons other than the applicant. Every person affected
by a law banning people of a particular race from taking public buses has had a private
right – the constitutional right to equality – affected, and should have standing to
challenge that law by way of judicial review, even if there are millions of people of that
race.
117 Tan Eng Hong, above, n 37 at 510–511, [69].

118 Gouriet, above, n 80 at 494 per Viscount Dilhorne.
119 Id at 518 per Lord Fraser, citing Boyce v Paddington Borough Council [1903] 1 Ch 109, HC
(England & Wales). See also Gouriet, id, at 483–484 per Lord Wilberforce, at 502 per Lord Diplock,
and at 506 and 515 per Lord Edmund-Davies.
120 Vellama, above, n 5 at 14–18, [29]–[36] and 40, [92].
121 Id at 15, [29], citing Boyce, above, n 119 at 113–114.
122 See Benjamin Joshua Ong, “Standing Up for Your Rights: A Review of the Law of Standing in
Judicial Review in Singapore” [2019] Sing J Legal Studies 316 at 330–344.
123 Vellama, id at 16–17, [33] (emphasis added).
124 Id at 16, [32].
125 Gouriet, above, n 80 at 483, quoted in Vellama, ibid.
Consider the facts of Vellama. Following a casual vacancy arising in Parliament

through the constituency where the applicant was a registered voter, the applicant
sought a mandatory order directing the Prime Minister to advise the President to issue
a writ of election to hold a by-election, and a declaration as to the proper interpretation
of Article 49 of the Constitution which deals with the filling of causal vacancies. She
did not proceed with this application because a by-election was duly held before the
matter was heard by the High Court on the merits.126
However, following the by-election, the applicant took out a second application,
this time only asking for a declaration that Article 49 obliged the Prime Minister to call
a by-election.127 The Court of Appeal held that where this application was concerned,
the applicant “could assert a public right arising under Art 49, rendering her no
different from any other citizen interested in the proper construction of Art 49”.128
Apart from doubt about whether there can be a public right to have a law interpreted
(Ong thinks not), 129 since only citizens (and not Singapore residents who are non-
citizens) are entitled to vote, the Court’s characterization of the applicant’s right as
public affirms the understanding that a public right can be asserted by only a segment
of the public. Yet, it can also be said the applicant was in fact asserting a private right
held simultaneously by other voters, and it did not make a difference that millions of
fellow voters were equally entitled to assert that right. Thus, distinguishing between a
private and a public right is not straightforward.
The Court went on to say that Ms Vellama did not have standing as she could
not prove any special damage, as she had “no more than a general desire to have Art
49 interpreted by the court” which was insufficient.130 For special damage to exist,
there must either be “damage to the interest common to all members of the public but
quantitatively greater than that suffered by other members of the public, or damage
qualitatively different from that suffered by the public, that is, damage to some interest
not shared by the public generally”.131 However, special damage:132
[…] does not mean a mere intellectual or emotional concern. A person is not interested
within the meaning of the rule, unless he is likely to gain some advantage, other than
the satisfaction of righting a wrong, upholding a principle or winning a contest, if his
action succeeds or to suffer some disadvantage, other than a sense of grievance or a
debt for costs, if his action fails. A belief, however strongly felt, that the law generally,
or a particular law, should be observed, or that conduct of a particular kind should be
prevented, does not suffice to give its possessor locus standi.
Yet, the Court’s view in Vellama seems inconsistent with Tan Eng Hong. It will
be recalled that in the latter case the Court found that although Mr Tan was no longer
facing a charge under section 377A of the Penal Code, he possessed standing to
challenge the constitutionality of that provision as he had previously been subject to
the criminal process on the basis of such a charge, and in any case there existed a real
and credible threat that he might be prosecuted under the provision again in the
future.133 By the same token, it might be said that Ms Vellama had standing because
126 Vellama, above, n 5 at 5–6, [1]–[6].

127 Ibid.
129 Ong, above, n 122 at 342.
130 Vellama, above, n 5 at 20, [43].
131 Id at 19, [40], citing Peter Cane, “The Function of Standing Rules in Administrative Law” [1980]
Pub L 303 at 313–314.
132 Australia Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 at 530–531, HC
(Australia), cited in Vellama, id at 20, [42].
133 Tan Eng Hong, above, n 37 at 531–544, [148]–[184].
she had been deprived of parliamentary representation in the past,134 and unless the
law concerning the filling of casual vacancies in Parliament was clarified there was a
real and credible possibility that she might find herself in the same position in the
future.
The boundaries of what amounts to special damage remain unexplored. It
seems clear that the damage need not be pecuniary,135 but what other actions amount
to gaining an advantage or suffering a disadvantage as a result of a public authority’s
decision? Does a person who regularly goes birdwatching or takes walks in a public
park suffer adequate disadvantage if an authority decides that the park should make
way for a housing development?
Moreover, the special damage an applicant needs to prove seems to closely
resemble the Tan Eng Hong requirement that the applicant prove a violation of a
personal right. The main difference between the two scenarios is that in one case it is
said that the breach of a public duty affects a private right, while in the other affects a
public right. However, if what the applicant needs to establish is essentially the same
in both scenarios, one may ask whether there is much point distinguishing between
them.
C. NO PRIVATE OR PUBLIC RIGHTS INVOLVED?
In Jeyaretnam, the last of the trilogy of cases, the Court of Appeal introduced the
concept of a breach of public duty which generates neither correlative private rights
nor public rights. In such a scenario, subject to a limited exception discussed below,
no individual has any standing to challenge the breach in court.136 In the case, the
applicant claimed that the Government and/or the Monetary Authority of Singapore
had acted unlawfully by offering to the International Monetary Fund a contingent loan
without first seeking a parliamentary resolution and the President’s concurrence,
which he claimed were required by Article 144 of the Constitution. The Court
ultimately held that Article 144 did not require this procedure to be followed in the
circumstances. It also found that the applicant was “unable to assert any rights –
private or public – to the alleged breach of duty, because there is none to be had: his
claim is brought in the public interest”.137
Could it not be said, though, the applicant was in fact asserting a public right,
in common with every other taxpayer or voter, to see that the Government had
complied with the obligations imposed on it by Article 144 of the Constitution? This
would make Jeyaretnam indistinguishable from Vellama, and the issue would be
whether the applicant was able to show special damage. The question thus arises
whether there is much utility in saying that some breaches of public duty affect neither
private nor public rights.138
The Court opined that even in the situation where neither private nor public
rights were involved, the concept of “special damage” mentioned in Vellama “might
also possibly encompass those rare and exceptional situations where a public body has
breached its public duties in such an egregious manner that the courts are satisfied
134 Ong, above, n 122 at 341.

135 Australia Conservation Foundation, id at 527 (“references to ‘special damage’ cannot be limited to
actual pecuniary loss […]”), cited in Vellama, above, n 5 at 19, [41].
136 Jeyaretnam, above, n 102 at 371, [65].
138 See also Ong, above, n 122 at 344 (“The distinction between ‘no public right’ and ‘public right, but
no special damage’ appears quite thin indeed”).
that it would be in the public interest to hear it”. However, “this is a very narrow avenue
which concerns only extremely exceptional instances of very grave and serious
breaches of legality”, for example, a Cabinet minister’s abuse of powers as contrasted
with a “low-level government officer’s failure to execute his duties fully” which would
not fall into the egregious breach of duty category.139
The egregious breach exception is not easy to square with the description of
special damage in Vellama as some advantage gained or disadvantage suffered by the
applicant. Confusion exists because according to Vellama an applicant must prove
special damage to establish standing where a breach of public duty has affected a
public right, whereas in Jeyaretnam the Court said the exception applies where the
breach of duty does not affect either private or public rights. In addition, it is unclear
if the exception can come into play where an applicant’s public right has been affected
but special damage cannot be proved. Perhaps it is better to regard the exception as
independent from, and not based on, the concept of special damage. Nonetheless, the
establishment of the exception, though narrow, is welcome as it confirms there is an
avenue for the courts to deal with grave breaches of law by public authorities under
the current standing test.
III. RECASTING THE STANDING RULES
A. DISTINGUISHING STANDING FROM ABUSE OF PROCESS AND JUSTICIABILITY
It remains to be considered why the courts shifted from the more flexible standing test
adopted in the Lim Chor Pee and Chan Hiang Leng Colin cases to the stricter test in
the Tan Eng Hong, Vellama and Jeyaretnam cases, and in particular extending the
stricter test applying to declarations to prerogative orders, instead of vice versa.
In Vellama the Court of Appeal described the rationale underlying the standing
test adopted as follows:140
Taken collectively, these rules on standing espouse an ethos of judicial review focused
on vindicating personal rights and interests through adjudication rather than
determining public policy through exposition. Matters of public policy are the proper
remit of the Executive, and decoupling judicial review from the fundamental precepts
of adversarial litigation would leave the courts vulnerable to being misused as a
platform for political point-scoring.
The Court went on in Jeyaretnam to explain its reluctance to adopt a more

liberal standing test by stating its preference for a green-light conception of public law,
that is, one that encourages the use of the political process to promote good governance
rather than the judicial process to redress bad governance.141 It noted in particular that
a red-light conception – where the courts act as a strong check on the executive142 –
might lead to vexatious claims disrupting the functioning of government agencies.143
Moreover, echoing Vellama, the Court preferred the view that it should be:144
139 Id at 370, [62].

140 Vellama, above, n 5 at 17, [34].
141 Jeyaretnam, above, n 102 at 364, [48], citing Chan Sek Keong, “Judicial Review – From Angst to
Empathy: A Lecture to Singapore Management University Second Year Law Students” (2010) 22
Sing Acad LJ 469 at 480, [29].
142 Jeyaretnam, id at 364, [49].
143 Id at 366–367, [55].
144 Id at 367, [56].
[…] concerned only with the individual’s rights and interests, and not matters of public
policy, which rightfully remains in the remit of proper political process. In this vein,
judicial review finds its place as an avenue for parties to bring claims of legality to the
courts, and not for the purposes of challenging the very merits of a policy decision.
It is indisputable that standing rules exist to strike a balance “between ensuring

access to the courts and preserving judicial resources”.145 However, fears of a flood of
vexatious claims are most likely overblown. If claims are indeed frivolous and
vexatious, the court has sufficient tools, including the powers of striking out and
awarding costs, to dismiss such claims. 146 This should not be conflated with
standing.147
Perhaps the Court’s references to ‘public policy’ should be understood as
underlining the point it made subsequently in Tan Seet Eng v Attorney-General,148
that “courts and judges are not the best-equipped to scrutinise decisions which are
laden with issues of policy or security or which call for polycentric political
considerations. Courts and judges are concerned rather with justice and legality in the
particular cases that come before them.”149 If so, it would arguably be preferable for
these sorts of policy-laden executive decisions to be screened out using a separate
doctrine of justiciability, such as that applied in Lee Hsien Loong v Review Publishing
Co Ltd,150 rather than overburdening the standing test.
It also remains clear from Jeyaretnam, Tan Seet Eng and Lee Hsien Loong that
the courts have a duty to examine substantive allegations that public authorities have
not acted according to what the law requires. Indeed, adherence to the rule of law as a
fundamental constitutional principle requires this. Jeyaretnam emphasized that
judicial review is an avenue for bringing claims of legality to court,151 while in Tan Seet
Eng the Court held that the rule of law, and Article 93 of the Constitution which vests
judicial power in the courts, imply that it is for the courts to decide the boundaries of
a jurisdiction or power vested in the executive, and whether the executive has acted
within the ambit of that jurisdiction or power. 152 And even when a case generally
appears to involve a non-justiciable subject, it was pointed out in Lee Hsien Loong that
the court may deal with any “pure question of law” which can be isolated.153
Administrative or political processes are not an ample substitute for judicial
review in these situations. As Lord Diplock put it in the IRC case:154
It is not, in my view, a sufficient answer to say that judicial review of the actions of
officers or departments of central government is unnecessary because they are
accountable to Parliament for the way in which they carry out their functions. They are
accountable to Parliament for what they do so far as regards efficiency and policy, and
145 Canadian Council of Churches v Canada (Minister of Employment and Immigration) [1992] 1 SCR
236 at 252, SC (Canada), cited in Attorney-General of Canada v Downtown Eastside Sex Workers
United Against Violence Society [2012] 2 SCR 524 at 541, [23].
146 Downtown Eastside, id at 542–543, [28].
147 Ong, above, n 122 at 343 (noting that abuse of process is conceptually different from whether an
applicant has a legal right that justifies a recognition of standing).
148 [2016] 1 SLR 779, CA.
149 Id at 814–815, [93].
150 [2007] 2 SLR(R) 453 at 489–491, [95]–[98], HC.
151 Jeyaretnam, above, n 102 at 367, [56].
152 Tan Seet Eng, above, n 148 at 817, [98].
153 Lee Hsien Loong, above, n 150 at 490, [98].
154 IRC, above, n 61 at 644, quoted with approval in Chng Suan Tze v Minister for Home Affairs at
[1988] 2 SLR(R) 525 at 554, [86], CA.
of that Parliament is the only judge; they are responsible to a court of justice for the
lawfulness of what they do, and of that the court is the only judge.
Thus, while it is the constitutional function of the legislature and executive to

formulate and implement policies, if in the formulation process the requirements of
the Constitution have not been followed, or a particular policy has adverse legal
implications when it is implemented, it is well within the courts’ constitutional
function to look into the matter. It would be undesirable if standing rules are so
restrictive that certain forms of governmental action become virtually immune from
judicial scrutiny.155
B. STANDING AS SUITABILITY AND SUSTAINABILITY
What role, then, should standing play? Ong has argued that the law of standing should
move away from being “interest-based” (that is, based on a test of sufficient interest)
to one that is “rights-based” – the sole test should be that “an applicant has standing
if he has suffered the violation of a right vested in him”.156 In his view, an interest-
based test is vague as there is no clear conception in the case law of what amounts to a
sufficient interest; it is “motivated merely by the desire to shut out applications by
‘busybod[ies]’ who ‘desire... to interfere in other people’s affairs’”. 157 On the other
hand, if a court focuses on whether a legal right of the applicant is at stake, “the
standing enquiry serves both as a means to shut out plainly legally unsustainable cases
and a staging ground for the court to adjudicate and pronounce on legal issues
concerning what constitutional rights the applicant enjoys”.158
It is submitted that the sufficient interest test which had been applied in Chan
Hiang Leng Colin and Lim Chor Pee, while admittedly imprecise, had been on the
right trajectory before it was supplanted by the current standing rule. The sufficient
interest test should thus be refined into one for determining, firstly, the suitability of
the applicant to bring the claim; and, secondly, the sustainability of the claim –
whether the claim has some merits or whether there are important legal issues
requiring clarification by the courts.
This is where courts in England and Canada have arrived at. In the World
Development Movement case the Divisional Court of England and Wales emphasized
that the dominant factor in determining whether an applicant has standing is the
merits of the case. The Court will consider the nature of the alleged breach of duty by
the authority and the importance of vindicating the rule of law; and, additionally,
whether there is any responsible challenger apart from the applicant, and whether the
applicant has a prominent role in giving advice, guidance and assistance concerning
the subject matter of the case.159
In similar vein, in Attorney-General of Canada v Downtown Eastside Sex
Workers United Against Violence Society,160 the Supreme Court of Canada affirmed
that the standing test requires three factors to be considered: “whether the case raises
a serious justiciable issue, whether the party bringing the action has a real stake or a
genuine interest in its outcome and whether, having regard to a number of factors, the
155 See Downtown Eastside, above, n 145 at 544, [31], SC (Canada).

156 Ong, above, n 122 at 348.
157 Id at 329–330.
158 Id at 330, quoting IRC, above, n 61 at 646.
159 World Development Movement, above, n 68 at 392–396.
160 Above, n 145.
proposed suit is a reasonable and effective means to bring the case to court”.161 The
factors are to be “assessed and weighed cumulatively, in light of the underlying
purposes of limiting standing and applied in a flexible and generous manner that best
serves those underlying purposes”,162 and “[a]ll of the other relevant considerations
being equal, a plaintiff with standing as of right will generally be preferred”.163
Under a test of this nature, a person whose personal right is alleged to have been
violated by the action of a public authority will clearly have standing to challenge the
action through judicial review. But even where no personal right of the applicant has
been violated – for example, where a non-governmental organization seeks to bring a
case as a representative for someone else – the applicant may be recognized to have
standing where it is regarded as an appropriate party to have carriage of the case and
there may be important legal issues desirable for the courts to resolve. The latter is
amply demonstrated by the Vellama and Jeyaretnam cases, where although the
applicants were found to lack standing, the Court of Appeal found it desirable to set
out the proper interpretation of Articles 49 and 144 of the Constitution respectively.
It is arguably preferable to explicitly treat an applicant bringing a representative
claim as having sufficient interest to do so in suitable cases, rather than, as Ong
suggests, to argue within a rights-based standing test that the representative’s own
rights are engaged, perhaps by recognizing “the idea of a right – perhaps one vesting
in only a limited class of individuals – to have a law interpreted”,164 which seems a bit
of a stretch.
A standing test more flexible than the current one should be adopted because,
apart from recognizing applicants’ standing to seek judicial review, there are limited
alternative means for legal wrongs committed by public authorities to be redressed. As
we have seen from Gouriet, the Attorney-General, as the protector of the public
interest, is regarded as always possessing standing to bring claims against authorities
in the public interest. But due to certain factors in the Singapore legal system, it is hard
to see how this would work effectively. The Attorney-General also acts as the
Government’s legal adviser, and defends the Government when judicial review claims
are brought. Thus, the Attorney-General arguably cannot both bring a claim in the
public interest as well as defend it (even if different personnel are involved) without
being in a position of conflict of interest,165 particularly if the Attorney-General has
previously rendered advice to the authority concerning the impugned action.166
An alternative would be for the Attorney-General to allow a party to bring
judicial review proceedings in his name by way of a relator action. That way, the party
would have to appear in person or (more preferably) engage lawyers personally,167
while the Attorney-General would act on the Government’s behalf. However, it seems
unlikely that the Attorney-General would accede to a relator action if he disagreed with
161 Id at 531, [2], citing Canadian Council of Churches, above, n 145 at 253, SC (Canada).
162 Downtown Eastside, id at 539–540, [20].
163 Id at 546, [37].
164 Ong, above, n 122 at 349.
165 A point recognized in the Malaysian context in Lim Kit Siang, above, n 116 at 45 per Abdoolcader
SCJ (dissenting).
166 Tham Lijing, “Casting the Relator Action”, Singapore Law Gazette (September 2014)
<https://v1.lawgazette.com.sg/2014-09/1126.htm> (accessed 18 August 2020; archived at
<https://web.archive.org/web/20190824203416/http://v1.lawgazette.com.sg/2014-
09/1126.htm>).
167 A court might well be justified in declining to recognize the standing of a party opting to act in
person if it feels that relevant legal arguments will not be properly put before the court due to the
lack of legal representation.
the merits of the party’s claim, even if a court might possibly reach a different
conclusion.
If the Attorney-General did agree to a relator action, there would exist a minor
procedural quirk with the naming of the suit. The Government Proceedings Act
provides that the relevant Minister may publish a list specifying Government
departments which are “authorised departments” for the purposes of the Act. 168
Section 19(3) states:
Civil proceedings against the Government shall be instituted against the appropriate
authorised Government department, or, if none of the authorised Government
departments is appropriate or the person instituting the proceedings has any
reasonable doubt whether any and if so which of those departments is appropriate,
against the Attorney-General.
Since no list of authorized Government departments has been issued to date, all civil
proceedings (which includes judicial review proceedings)169 have to be brought against
the Attorney-General, leading to the anomalous situation that a suit might end up
being entitled “Attorney-General v Attorney-General”. This may be avoided if a list of
authorized Government departments is issued as described above.
Due to the conceptual and practical difficulties highlighted above, the current
law on standing in Singapore seems unduly limiting and also challenging to apply. It
is submitted the standing test can be recast according to the following broad
framework. An applicant will have standing if the following requirements are satisfied:
i. The applicant is a suitable party to bring the case. This can be

demonstrated by the applicant either (1) establishing the alleged
violation of a personal right (in the sense of either a constitutional right,
or a right to insist that a public authority comply with relevant
administrative law rules); or (2) that it is appropriate for the applicant
to bring the case on behalf of another party because it possesses
particular experience and expertise in the subject-matter of the case, and
there is no other more suitable party reasonably able to do so.
ii. In addition, there are merits to the case, or some important legal issues
that call for clarification by the court – in other words, the case is not
completely hopeless.
In effect, the above framework might be said to build on the egregious breach
exception recognized in Jeyaretnam, while observing it is unnecessary to restrict the
situations where an applicant unable to demonstrate a prima facie infringement of a
personal right is deemed to have standing only to cases where egregious breaches of
the law have occurred: “if good governance is taken seriously then any form of unlawful
conduct is egregious”. 170 The framework takes inspiration from the standing tests
applicable in other jurisdictions such as England and Canada which may be relied on
as models for developing principles to determine when there is a public interest in the
case being heard.
168 GPA, above, n 3, s 19(1).

169 Id, s 2(2) (definition of civil proceedings).
170 Swati Jhaveri, “Advancing Constitutional Justice in Singapore: Enhancing Access and Standing in
Judicial Review Cases” [2017] Sing J Legal Studies 53 at 74.
One might well ask, though, whether it is necessary to recast the standing test
along the lines of the above framework if the courts are willing, as some cases
suggest,171 to discuss the merits of judicial review challenges in obiter dicta even when
an applicant is held not to have standing. Aside from the desirability of improving the
current test by making it less confusing to apply and providing greater guidance as to
who will qualify as having standing, it is of course entirely up to a court whether it
wishes to comment on legal issues in obiter dicta. In contrast, an applicant with
standing is entitled to a judgment on the merits of the claim. Thus, broader standing
rules provide more assurance that legal issues will be addressed by the court. Rather
than having the court dwell mainly on whether the applicant is a mere busybody or if
the claim is justiciable, focusing its mind on the suitability of the applicant and the
sustainability of the claim also warrants that these important issues will be
substantially dealt with.
Archimedes, when describing the operation of a lever, is said to have declaimed:
“Give me a place to stand, and I shall move the earth.” In this spirit, is submitted that
standing rules should be sufficiently accommodating for appropriate applicants to
bring to the courts’ attention instances of substantive non-compliance with the law by
public authorities, thus enabling the courts to clarify and, if necessary, develop the law
in profound ways.
171 See, for example, Vellama, above, n 37; Jeyaretnam, above, n 5; Ravi s/o Madasamy v Attorney-
General [2017] 5 SLR 489, HC; Nagaenthran a/l K Dharmalingam v Public Prosecutor [2019] 2
SLR 216, CA; and Daniel De Costa Augustin v Attorney-General [2020] SGCA 60, CA.

A Place To Stand To Move The Earth Stand

Uploaded by

Copyright:

Available Formats

A Place To Stand To Move The Earth Stand

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

A Place To Stand To Move The Earth Stand

Uploaded by

Copyright:

Available Formats

Dr Jack Tsen-Ta Lee

29 September 2020, published December 2020

A Place to Stand to Move the

* LLB (Hons) (Nat’l University of Singapore), LLM (UCL, Lond); PhD

© 2020. This is a post-print version of an article published as [2020] Singapore Journal

I. THE EVOLUTION OF STANDING RULES

A. REMEDIES AVAILABLE IN PUBLIC LAW CASES

B. STANDING RULES BEFORE 2012: TOWARDS LIBERALIZATION

As mentioned previously, the mandatory, prohibiting and quashing orders, together

(1) Prohibiting and Quashing Orders

14 A term retained in the SCJA, above, n 2, 1st Sch, para 1.

decision but is nonetheless inconvenienced by it in some way – a “stranger” – the court

21 [1995] 2 SLR(R) 627, HC (‘Chan Hiang Leng Colin (HC)’).

31 Chan Hiang Leng Colin (HC), id at 634, [15]–[16].

(2) Mandatory Orders

II. THE CURRENT STANDING RULE

A. THE STANDING RULE UNIFIED IN AN UNEXPECTED DIRECTION

Another Court of Appeal decision is pertinent: Eng Foong Ho v Attorney-

104 [2009] 2 SLR(R) 542, CA.

B. DISTINGUISHING BETWEEN PRIVATE AND PUBLIC RIGHTS

109 Cap 224, 2008 Rev Ed.

117 Tan Eng Hong, above, n 37 at 510–511, [69].

Consider the facts of Vellama. Following a casual vacancy arising in Parliament

126 Vellama, above, n 5 at 5–6, [1]–[6].

C. NO PRIVATE OR PUBLIC RIGHTS INVOLVED?

134 Ong, above, n 122 at 341.

III. RECASTING THE STANDING RULES

A. DISTINGUISHING STANDING FROM ABUSE OF PROCESS AND JUSTICIABILITY

The Court went on in Jeyaretnam to explain its reluctance to adopt a more

139 Id at 370, [62].

It is indisputable that standing rules exist to strike a balance “between ensuring

Thus, while it is the constitutional function of the legislature and executive to

B. STANDING AS SUITABILITY AND SUSTAINABILITY

155 See Downtown Eastside, above, n 145 at 544, [31], SC (Canada).

i. The applicant is a suitable party to bring the case. This can be

168 GPA, above, n 3, s 19(1).

You might also like

Pfad - The Proxy pFad of © 2024 Garber Painting. All rights reserved.