Court of Appeal gives green light to unlawful governance.

The Court of Appeal has just handed down judgement in Kenneth Jeyaretnam’s IMF loan case. The case is crucially important and it raises two key points. Can the government lend away the wealth of the nation without Presidential approval? And can an individual citizen challenge the behaviour of the government in court, if it is alleged that there has been a breach of the constitution? The ruling of the court is against Kenneth on both counts. The government apparently can lend away the reserves without Presidential approval – effectively making the role of the President as the holder of a “second key” worthless. And furthermore, an individual citizen does not have the right to challenge the government in court, even if the case is of such gravity as this one where a breach of the constitution has been alleged. In stating as they do, that “the nature of the issue is entirely political” – the judges have completely misconstrued the reality of the case and the nature of the constitution. The decision is a difficult one to agree with. Upholding the law is not political.

For now I will only address the question of locus standi, which is the question of whether or not a private individual has the right to challenge the behaviour of the government through the courts. Long time readers of my blog will understand that I have a particular interest in this question since a government with free rein to act unlawfully without the oversight of the courts is not much more than a dictatorship.

To begin with, the court quite carefully and correctly explains that the right to bring a case is completely separate from the merits of the case itself. If one is not allowed to sue, then one cannot come to court and sue, irrespective of how likely one may be to win or lose. With this in mind, we can put aside briefly the arguments and reasons on why Kenneth lost the case, and just focus on whether he does, or should, have the right as a citizen to bring it in the first place.

locus standi is apparently a very complex and misunderstood aspect of law, and as I am not a lawyer, I do not pretend to understand it fully. My concerns with the case mostly flow from what I hope is an educated but common sense understanding of the arguments presented, as well as a reaction to the apparent lack of internal consistency in the Judges’ reasoning. The ruling on this point covers some background and case-law on the topic. Suffice to say a couple of distinctions are teased out which are crucial. Citizens intrinsically do have the right to challenge the behaviour of the government – but not automatically – there are limitations. The most important distinction appears to be between unlawful behaviour and poor policy or administration. It is much easier to sue in the case of the former than the latter.

To judges explain this (hopefully obvious) point well, and I shall quote from the ruling directly:

every public authority has the duty of observing the law … it hardly follows that every official action or decision is appropriately subject to judicial review

Later on they write:

On the other hand, it is equally important that the courts do not by use or misuse of the weapon of judicial review cross that clear boundary between what is administration, whether it be good or bad administration, and what is an unlawful performance of the statutory duty by a body charged with the performance of that duty

Clearly, the distinction exists between the allegation of unlawful government behaviour, and the allegation of poor policy, or poor administration. One of the central cases cited in the judgement is from the UK, where the tax authorities declined to prosecute a set of casual workers for providing false information. This is a case of policy and administration on the part of the authorities. There is no legal or constitutional obligation for the authorities to prosecute every supposed tax dodger. The authorities have to make a policy decision on who to prosecute, and who not to prosecute. The authorities must reasonably balance the public interest, the sums of money involved, the likelihood of a prosecution and myriad other factors before bringing a case. This public interest balancing act however doesn’t apply to the question of the government breaking the law. The government, as the judges note, “has the duty of observing the law”. Observing the law is not optional.

The judges then are abundantly aware of the distinction between the “duty of observing the law” and the pointlessness of subjecting “every official action or decision” to judicial review. The judges are also well aware that this case is about observing the law, in fact the constitution. Elsewhere in the judgement they devote some paragraphs to examining the wording of the constitution, the behaviour of the government, and in finding that the constitution was not breached. So the distinction clearly exists, the judges are aware of it, and they aware on which side of the distinction this case falls.

In finally coming to their point, the judges frame the question perfectly:

We also note Lord Diplock’s concerns where he lamented the emergence of a ‘grave lacuna’ (omission) in the system of public law if applicants were to be denied locus standi by virtue of standing rules that would stop them from bringing matters ‘to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped’

This point bears repeating. Kenneth’s case is fundamentally about “get[ting] the unlawful conduct stopped”. The judges write, citing case-law from the UK, that it would be a grave omission if the system prevented citizens like him from doing so. But yet that grave omission is exactly what they inflict on us in the very same paragraph. Reading around this very obvious and well supported point of law, and without citing any other authorities, the judges suddenly let the mask slip, and a green light to unlawful governance is given. The judges state that the principle of “get[ting] the unlawful conduct stopped” should not extend to “all” forms of unlawful conduct. A citizen cannot “always” come to court if the government has broken the law. Yet no explanation for introducing these caveats is given. The judges introduce the argument that the “gravity of the breach” must be considered. In this case, the gravity of the breach is the most grave imaginable – a breach of the constitution itself. Yet despite introducing this condition, the judges decline to assess the “gravity of the breach”. The judges decline to explain why they allow this “grave lacuna” to occur. They skirt around the issue, stating:

neither Parliament nor the President had thought fit to question the propriety of the promised loan. If the President was indeed concerned and inclined to veto the commitment, he would have done so

In this, the judges completely mis-frame the case, the wording and the supposed purpose of the constitution. There is no legal scope for the presidential “veto” they refer to. It is frankly bizarre for the judges to even suggest this. The constitution makes it clear that Presidential approval is required when article 144 applies:

Article 144.
—(1) No guarantee or loan shall be given or raised by the Government —
(a)except under the authority of any resolution of Parliament with which the President concurs

The whole question of this is to prevent a mischievous government going behind the President’s back and bankrupting Singapore. Stating that the President decided not to intervene is to misconstrue things entirely. By phrasing things this way, the court seems to paint seeking Presidential approval as a subjective administrative decision rather than the mandatory constitutional requirement that it really is.

In making this ruling, the court has effectively given the government a green light to rule unlawfully. If the government flagrantly and deliberately breaks the law, and you as a citizen are outraged, there seems to be little you can do about it. You certainly cannot come to court to “get the unlawful conduct stopped” – as Lord Diplock of the United Kingdom would expect. In Singapore, you do not have locus standi. This may seem like a terrible way to run a judicial system, it certainly caused the authorities cited by the judges great concern, but it did not stop them from making such a ruling. One can only wonder as to why.

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19 responses to “Court of Appeal gives green light to unlawful governance.

  1. Pingback: Court of Appeal gives green light to unlawful governance | Rethinking the Rice Bowl

  2. Nicholas

    Dear Writer,

    While I might not agree with the court’s abstinence from reviewing governmental actions, there are a few things that I feel you have omitted to consider. I would have written a longer post, but I’m currently studying for exams.

    First, the president’s discretion is not unlimited. You need to consider Art 21(3) of the Constitution as well, which states:

    (3) The President shall consult the Council of Presidential Advisers before performing any of his functions under Articles 22, 22A(1), 22B(2) and (7), 22C(1), 22D(2) and (6), 142(1A), 144, 148A, 148B and 148G.

    Second, there is a fine line between enforcing the rule of law and playing a legislative function. The courts in Singapore have always been wary of crossing, from their powers as the judiciary, into playing the function of parliament. As such, they would not question whether policy is good or bad, as that’s the legislature’s function, and they would only review administrative action that is unreasonable (in the wednesbury sense), irrational, or illegal (as in contrary to principles of natural justice). This is known as the separation of powers principle.

    As such, as long as there is some reason or rationale (doesn’t matter if the courts agree with the reason or rationale), then the courts would allow an administrative action to stand. Only if it’s completely devoid of logic would the courts annul such an action under the body of administrative law.

    As to your points about locus standi, I’ll probably have to read the case in detail after my exams to answer it.

    I would like to reiterate that I am not making a stand as to whether the court’s decision in the aforementioned case was correct, but I just want to contribute certain points for consideration.

    • Hi Nicholas,

      Thank you for your comment. I feel though that you misunderstand my argument. Essentially the case is not about administration, or good versus bad policy. This is not about reviewing administrative action. The whole central point of the case is that the action complained of is unlawful and unconstiutional. The wording of the constitution is quite clear, the concurrance of the president is required. But this concurrance was not obtained. So, the merits of the case aside, locus standi should exists. Otherwise the “grave lacuna” will occur, and does occur. Citizens should be able to, as the UK law lord puts it, “get the unlawful conduct stopped”. But thanks to the Singapore court of appeal, unlawful conduct on the part of the government can in these circumstances not be stopped.

  3. Teddy Wee

    Reproducing this here for your benefit, dear writer of this blog post. while i am sympathetic towards your intentions, your article really does nothing to champion your intent, except mischaracterize a good judgment.

    “this writer has good intentions, but by his admission he is not a lawyer.

    he has mischaracterized the court of appeal’s judgment. the court was not addressing the gravity of the breach with the example of the president veto and parliament consent. a careful reading of the judgment shows that the court was explaining the statutory SCHEME of the constitution, and it had assumed (for the sake of discussion) that if there was indeed a requirement to seek consent per Art 144, then the applicant had highlighted propriety concerns to the President and Parliament. if there was an issue of legality, the statutory scheme (based on legal interpretation rules) would not offer the applicant standing, because it was a matter of authority required of either Parliament and President.

    the reason why not everyone has standing to come to court in JR is due to jurisprudential difference. UK chose a red light approach, while Singapore chooses a green light approach. he needs a finer understanding of jurisprudence if he wants to criticize the judgment. the judgment does elucidate briefly on jurisprudential concepts on administrative law and Hohfeld’s theory of rights. These are references the court explicitly relied upon and mentioned, and the author might want to go read these texts more carefully to come to a fuller appreciation of the judgment.

    Singapore has clear rules on locus standi, and the judges summarize it neatly in para 64. if our rules on locus standi were non-existent, then tan eng hong and madam vellama’s case would not have been heard.

    If the author wants a red light approach to administrative law in Singapore, then this article does nothing to argue for it.

    lastly, there is no gravity of breach to consider in this case. the writer has temporarily avoided the discussion of the merits of the applicant’s claim. if he did, then he would understand that the applicant’s claim falls flat legally on its merits and there is no breach by the government in this context whatsoever. thus there was nothing of grave concern for the court to even consider.”

    • Teddy, I suppose you too are not a lawyer. Dealing with your last point first. The merits of the case are completely irrelevant to everything in this post. The article says so and the judges say so. Think of it like this – locus standi is a hurdle you have to clear before you are even allowed to turn up and make your case in court. So clearly we can put the fact that Kenneth lost to one side.

      On jurispurdence, of course, different countries have different approaches. In Singapore the courts let the government get away pretty much with whatever they like. The point here though is quite novel. The ruling cites precidents and authorities wherein the distinction between unlawful government behaviour, and poor administration is drawn out, and despite quoting the law lords who state it would be a terrible omission if citizens could not come to court to prevent unlawful government behaviour, the judges then create that exact omission, with no rational explanation and no authorities cited. They introduce these vague, unexplained and inprecise caveats. The judges state that the principle of “get[ting] the unlawful conduct stopped” should not extend to “all” forms of unlawful conduct. A citizen cannot “always” come to court if the government has broken the law. They do not explain the scope of “not all” and they do not explain the scope of “not always”. Is this case one of the “not always” or is it not? They do not explain how they decide. They merely refer to the “gravity of the breach” – their words. So the ruling is very vague and imprecise. These caveats (“not all”, “not always”) appear to be an invention of the court of appeal, and they give the government obvious scope to engage in unlawful behaviour which is beyond the reach of the courts. This scope for unlawful behaviour does not exist in any of the quoted authorities which the judges refer to. It is their own invention.

      As for the “gravity of the breach”, this is actually something the judges themselves introduce and it is not apparently taken from the authorities. Particularly bizarre then that they decline to assess the gravity of the breach in this case, they do not define what would be in scope and out of scope for judicial review based on their invention of “gravity”, and they quickly move on. Presumably because the gravity of the breach – being a matter of the constitution – is so significant in this case that it shoots down their attempt to weasel out of the expectation placed on them by Lord Diplock. So the judges’ reasoning is extremely hard to fathom and inconsistent with the authorities they cite. You don’t need to be a lawyer to see this.

  4. Teddy Wee

    you’re right i’m not yet a lawyer. but i’m about to graduate. i think you’ve completely missed my last point. i am fully aware what locus standi is. the point is the court of appeals have clearly stated there can be locus standi even if there is no correlative private right but there has been a breach of a public duty, but only if that breach is of sufficient gravity such that it would be within public interest to hear. this can be read from [64] of the judgment. this legal test presupposes that a breach of duty must even occur, before one can talk about gravity. hence, there is a need to examine the merits of whether such a breach can legitimately exist.

    now if you’re indeed a lawyer, or legally trained person, then you would recognize that despite judges’ best attempt to articulate that issues of jurisdiction do not enter into merits, the line between merit and jurisdiction are often blurred, and sometimes issues of merit need to be examined when determining jurisdiction. the legal test in this case that has been summarized is one such example. such doctrinal conflicts between issues of merit appearing in jurisdictional concerns are strife in conflict of laws and admiralty.

    these “inventions” you speak of are a jurisprudential difference. we are not England. we do not need to follow them blindly. why do you fall to the same problem of not reading the legal theory references on that the court of appeal has alluded to? please google red-light/green-light theories on administrative law. the court of appeal has decided to adopt a green-light approach. we can disagree on whether this is the right approach, but the judgment cannot be faulted for adopting a jurisprudential difference on administrative law from england. singapore has developed in its own way, and from the way singapore case law on locus standi has developed (please read the judgment, because it does talk about it), it is clear the singapore court of appeal chose the green-light approach because its strengths speak closer to what they feel is appropriate for singapore.

    • Thanks Teddy,

      RE paragraph 64, this is really just a recapitulation of the point of law which the judges bizarrely invented in paragraph 61. That being in contradiction to the cited authorities and without citing any alternative authorities that would support their invention.

      Let me ask you, is there in existance, or do the judges cite, any precident for the fact that they completely contradict the expectations of Diplock at para 61? To quote:

      “We also note Lord Diplock’s concerns where he lamented the emergence of a ‘grave cacuna’ (grave omission) in the system of public law if applicants were to be denied locus standi by virtue of standing rules that would stop them from bringing matters ‘to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped’ (at 644). While in general we acknowledge the force of this argument, it should not ipso facto extend to all forms of unlawful conduct without discrimination. It cannot be the case that a citizen is always entitled to come to court to ask for intervention by the court whenever it is alleged that a public body had acted beyond the powers conferred on it. The gravity of the breach would be a relevant consideration”

      Is it not obvious from this quote, that the court has invented new and unexplained exceptions to locus standi – not all forms of unlawful conduct, citizens are not always entitled to come to court – even when the government is breaking the law? Personally I agree with Diplock, and find this “lamentable” for the obvious reasons. If there is a precident for this, I would love to see it.

      Particularly troubling is that the court puts no flesh on these bare bones exceptions. They just state that they exist and then strike Kenneth out. They don’t say how grave the breach must be. They don’t assess whether the breach in Kenneth’s case is grave or not. Despite stating clearly at para 59 that this case is entirely about a breach of the constitution flowing from a failure to seek presidential assent, the court then **inexplicabily** turns this on its head and cites the fact that the president did not reach out and apply a veto of his own volition. It’s obvious that they have got this twisted and obvious that they have created without explanation something which never existed before. A green light for the government to break the constitution beyond the reach of the courts.

      For all your talk of jurisprudence, that is what this is about, and I maintain that it is an invention of the court in this ruling. An invention which is derived from Singapore’s “green-light” model, and which contradicts the authorities, and which the judges barely explain or parameterise. How can a future case be decided with reference to this? The exceptions are extremely poorly specified.

      And yes, I am somewhat familiar with the green-light / red-light models. See the title of this blog posting for a pretty big clue.

    • Nicholas

      As a matter of jurisdiction:
      (1) We are not bound by UK law.
      (2) The CA, being the highest court in Singapore, is perfectly entitled to create Singapore’s leading case law.

  5. Teddy Wee

    Lastly, your final paragraph as a conclusion, “In making this ruling, the court has effectively given the government a green light to rule unlawfully. If the government flagrantly and deliberately breaks the law, and you as a citizen are outraged, there seems to be little you can do about it. You certainly cannot come to court to “get the unlawful conduct stopped” – as Lord Diplock of the United Kingdom would expect. In Singapore, you do not have locus standi. This may seem like a terrible way to run a judicial system, it certainly caused the authorities cited by the judges great concern, but it did not stop them from making such a ruling. One can only wonder as to why.”…

    Makes absolutely no sense if we read para 63 and 64 of the judgment. Bearing in mind Tan Eng Hong and Madam Vellama managed to get standing for their applications, it’s difficult to see how you could come to this conclusion.

    • No name

      Tan Eng Hong – involved fundamental rights (article 12)
      Vellama – locus standi was waived

    • At para 51, the judges make it clear that this case is somewhat different from Tan Eng Hong and Mandam Vellama. In both those cases the appellants had some “right” which had been infringed. In this case, Kenneth apparently has no public or private right to assert, the case is brought purely in the public interest. The public interest being in Lord Diplock’s words “to get the unlawful action stopped”. It is in this space that the judges have apparently created new case law – as I accept they are entitled to do – but as I assert, what they create is a terrible idea, as it means unlawful government behaviour cannot necessarily be stopped by citizens through the courts.

  6. Teddy Wee

    I’ve already explained MANY times that the judges cite the English precedent which you have been harping on, but created the exceptions based on ESTABLISHED JURISPRUDENTIAL THEORY. It’s entirely legitimate to decline following an English authority based on theoretical differences in jurisprudence. The court also cited academic opinions that it agreed with to back up its decision to depart from the English position.

    The fact that you insist it’s vague exceptions to rule in the opposite without addressing the jurisprudential theories and academic opinions that the court has raised shows an inherent bias on your part to skirt the key contents of the exception. I’ve said many times we could disagree on the content of the exceptions, but they are in no way vague.

    This is the sort of blind and bias false intellectualism that pisses me off. Your article is full of it.

    Adding on to this reply from the TOC page, I appreciate you acknowledge you understand red-light/green-light theory. Then it seems extremely disconcerting for you to claim the exception is baseless. It is obviously not. In addition you haven’t addressed my views on paragraph 64 and 65, that locus standi comes with a fully fleshed out test.

    For finality, the exception of “sufficient gravity” that you claim is baseless (even if we don’t enter into jurisprudential theory) is derived from common law based on interpreting the English test in Boyce. See [62] of the judgment, I quote the relevant parts for you here.

    “We have already noted that, in so far as public rights are concerned, it was held in Boyce that “where no private right is interfered with, but the plaintiff, in respect of his public right, suffers special damage peculiar to himself from the interference with the public right” the plaintiff would have the standing to ask for judicial review in respect of that interference. In this regard, it seems to us that “special damage” 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 that it would be in the public interest to hear it. However, we maintain that this is a very narrow avenue which concerns only extremely exceptional instances of very grave and serious breaches of legality.”

    If this is not proper development of the common law, then I don’t know what else is.

  7. Hi Teddy,

    I really do understand that this is about jurisprudence. I understand there is no obligation to follow English precidents. I understand that this is a totally legitmate outcome that the court is allowed to arrive at. I understand that – in the context of jurisprudence – this is a proper and legitimate development of common law. My point is that the result of this “development”, is totally ludicrious and thus a completely bad idea. The courts should not give the government a green light to break the law. That is what they have done, as a function of (and I accept it based on your insightful comments) our perfectly legitimate and well established “green-light” jurisprudence model. But, to reiterate, it is a TOTALLY TERRIBLE IDEA!! The government shouldn’t have a green light to break the law **under any circumstances**

    • Nicholas

      Dear Writer,

      Glad that you understand about basic jurisprudence. Having understood that, you are completely justified in disagreeing with the CA’s decision.

      However, perhaps you should think of the repercussions of the CA preventing the government from breaking the law “under any circumstances”. A few questions for you to consider:

      (1) should the “law”, and hence when it is broken, be determined by the judiciary or the legislature?

      (a) if the judiciary is to determine it, does it undermine the legislature’s function of creating the law and deciding what is a breach of the law? Might we as well have no legislature and just judiciary?

      (b) if the legislature is to determine it, would the judiciary never be able to perform its function as a check on the legislature? Say, as what you propose, what happens when legislature enacts bad law just so it can deem a bad action that it does “according to law”? (Cf Art 149 consti and ISA s 8)

      Well, i hope you are able to see that there is tension, and there always be tension between the two propositions i’ve mentioned. As lawyers-to-be, we are more inclined to accept that the CA has struck a reasonable balance between the two, thus explaining the irritation of my learned friend.

  8. richardwkc

    As a citizen, I am bound to obey the law; and my understanding as a citizen is that nobody is above the law, not even the legislature.

    If the govt breaks the law, then the govt is answerable for it; the question [see Niclolas’ comments] then arises: Who determine[s] whether a law has been broken? The judiciary, of course. The judiciary was established specifically for this reason.

    If a judiciary’s decision may result in an adverse impact on the legislature, so be it.

    Can the legislature enact “bad laws”? Of course, it can.

    Can the citizenry veto out the legislature for enacting bad laws?

    Of course, it can, if we assume this is all part of a democratic society.

    • Good point well made. “Who determine[s] whether a law has been broken?”

      It may be parliament that passes legislation to say that murder is illegal, but if I am accused of killing someone, I am charged and taken to court and tried. Not charged and taken to parliament to be tried. It has and always will be the judiciary which is responsbile for this process.

  9. richardwkc

    Precisely, Andy.

  10. Pingback: 2013 part one – a year in justice | andyxianwong

  11. Pingback: Has it come to this, freedom to burn effigies? | andyxianwong

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