Jack Tsen-Ta Lee
Assistant Professor of Law
School of Law, SMU
ON 9 APRIL, Justice Philip Pillai, sitting in the High Court, released the grounds for his decision for granting leave – that is, permission – for Mdm Vellama Marie Muthu’s judicial review application in the Hougang by-election case. She had applied for a declaration that the Prime Minister does not have unfettered discretion when deciding whether or not a by-election should be called in Hougang Single Member Constituency, and a mandatory order requiring the PM to advise the President to call a by-election within three months or some other reasonable time determined by the court.
A mandatory order is a type of prerogative order. Prerogative orders, formerly called prerogative writs, were so called because at first they could only be issued at the prerogative of the British Crown. However, by the end of the 16th century, any aggrieved citizen could ask for them to be issued.
An application for one or more prerogative orders is made pursuant to Order 53 of the Rules of Court, and is a two-stage process. The hearing before Justice Pillai was the first stage. Here, what the applicant had to do was to seek leave to apply for a mandatory order. Why is this stage necessary? As the judge pointed out, it is “intended to be a means of filtering out groundless or hopeless cases at an early stage, and its aim is to prevent a wasteful use of judicial time and to protect public bodies from harassment (whether intentional or otherwise) that might arise from a need to delay implementing decisions, where the legality of such decisions is being challenged”.
Essentially, Justice Pillai pointed out that the threshold at the first stage of the proceedings is very low – in other words, not difficult to pass. That is why he granted leave for Mdm Vellama to argue her application on the merits, which would be the second stage of the O 53 proceedings. The judge noted that the Court of Appeal had previously stated in a 1996 case that all an applicant needs to demonstrate at the first stage is a “prima facie case of reasonable suspicion”. In other words, on the face of the matter – without going too deeply into the evidence – does the judge reasonably suspect that the applicant has a chance of making out her case?
The AG’s and applicant’s arguments
The Attorney-General (AG) had argued that after amendments made to O 53 in May 2011, it is now possible for an applicant to ask for a prerogative order as well as for a declaration in the same application. However, the High Court cannot grant the applicant a declaration unless leave is given for the application for the prerogative order to be heard on the merits. In other words, the application for a declaration stands or falls with the application for the prerogative order.
The applicant’s lawyer, Mr M Ravi, did not disagree with what is stated above. However, he informed the judge that if the leave application was not granted, his client would make a separate application under Order 15 rule 16 of the Rules of Court for a declaration, asking for the same things. An application under O 15 r 16 is a single-stage process – there is no need to ask the court for leave to apply for a declaration.
In support of the applicant’s legal right to do this, Mr Ravi cited the statement by Justice V K Rajah (as he then was) in Chee Siok Chin v Minister for Home Affairs (2006) that “[t]he court rules are designed essentially to facilitate workflow and not to impede legitimate legal grievances”.
Justice Pillai then noted that the requirements for declarations under O 53 and O 15 r 16 appear to be different. Under O 53, declarations “are subject to the language of O 53 and require leave of court”, whereas under O 15 r 16 they “do not require leave of court but are subject to the normal requirements including locus standi and a live dispute”. The judge alluded to this point again later on, when he said that if Mr Ravi asked the Court to treat the application as one commenced under O 15 r 16 rather than O 53, “the question of whether the quite separate requirements for standalone declarations have been met would have to be determined at a substantive hearing”. The present first-stage hearing was not a substantive hearing. That was one of the reasons why he felt the matter should proceed to a substantive hearing.
Justice Pillai then set out in his judgment the AG’s and applicant’s arguments as to why the Court should or should not grant Mdm Vellama the mandatory order and declaration that she asked for. I think his purpose for doing so was, again, to show that that there was a sufficient dispute between the parties which warranted the case being heard on its merits. Mdm Vellama did not have such a hopeless case that it should be dismissed by him.
What happens next
If the AG had not appealed against Justice Pillai’s ruling, Mdm Vellama’s application would have been heard on the merits on 16 April. But the AG appealed, essentially asserting that Justice Pillai got it wrong and should have dismissed the application at the first stage. The Court of Appeal decided that it would hear the AG’s appeal after Justice Pillai had written the grounds for his decision, and vacated (cancelled) the 16 April hearing date.
Following Justice Pillai’s issuance of the grounds for his decision, the Court of Appeal informed the parties that the appeal would be heard in the week commencing 14 May.
However, there has been a further twist in the case. On 13 April, Mdm Vellama’s lawyer filed an application claiming that the Court of Appeal cannot hear the appeal since the AG did not comply with the Rules of Court by first asking the High Court for permission to appeal against Justice Pillai’s ruling. So far, the hearing date of this latest application has not yet been fixed. The Court of Appeal is likely to fix the application for hearing together with the AG’s appeal.
If Mr Ravi’s application succeeds, the matter will be refixed for hearing in the High Court (probably before Justice Pillai again) on the substantive issues. If the application is dismissed, the Court of Appeal will go on to hear the AG’s appeal. If it is convinced by the AG’s arguments that Justice Pillai should not have granted leave, that is the end of Mdm Vellama’s case. But if the AG fails, there will be a hearing on the substantive issues in the High Court.
The writer is an Assistant Professor of Law who teaches and researches administrative and constitutional law at the School of Law, Singapore Management University.
1 Public Service Commission v Lai Swee Lin Linda  1 SLR(R) [Singapore Law Reports (Reissue)] 133 at , Court of Appeal (Singapore).
2 Chan Hiang Leng Colin v Minister for Information and the Arts  1 SLR(R) 294 at , CA (Singapore).
3 Chee Siok Chin v Minister for Home Affairs  1 SLR (R) 582 at , High Court (Singapore).
4 Vellama d/o Marie Muthu v Attorney-General  SGHC 74 at , HC (Singapore).
5 Id at .
6 Id at –.
7 “By-election case: Resident seeks to strike out AGC’s appeal”, The Straits Times (14 April 2012) at A34.
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