Jack Tsen-Ta Lee
Assistant Professor of Law
School of Law, SMU
THE CAUSE CÉLÈBRE that is Bukit Brown Cemetery has galvanized numerous civil society groups into calling for its preservation. They are responding to the Ministry of National Development’s decision to build a road across the historic burial ground to ease traffic congestion along Lornie Road and the Pan Island Expressway during peak hours, and to allow for future traffic growth.
Can an application be made to the High Court for judicial review against the MND to prevent it from constructing the planned eight-lane highway? This is a question of administrative law – the branch of law relating to how one sues the Government when it is alleged to have acted unlawfully. The remedies that might be sought include a quashing order to cancel the original decision, and a mandatory order to require the MND to reconsider its decision, relying on the correct legal principles.
Two main issues are pertinent. First, does anyone have standing (that is, sufficient interest) to bring a case against the Government? Secondly, what grounds of judicial review can be relied upon – in reaching its decision, did the Government actually act in an unlawful manner?
An Elizabethan theatre and a dam in Malaysia
A leading UK textbook on judicial review notes that the law relating to standing, also known by the Latin term locus standi (a place to stand), tries 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”.
The legal test for whether a person has standing to ask the court for a quashing or mandatory order is whether he or she has sufficient interest in the matter. On its own, this term is pretty meaningless. The likelihood of establishing standing depends on whether the court takes a narrow or broad approach towards standing.
These contrasting approaches can be illustrated with two British cases. The narrow approach is exemplified by a 1990 case called ex parte Rose Theatre Trust. This judgment is particularly interesting because its facts are similar to the Bukit Brown Cemetery issue. While a site in Central London was being developed, the remains of The Rose theatre were uncovered. This was a highly significant find as most of Christopher Marlowe’s plays and two of William Shakespeare’s plays were first staged in this Elizabethan theatre. To lobby for preservation of the site, a group of “persons of undoubted expertise and distinction” in archaeology, theatre, literature and other fields, as well as residents and their local MP, came together to form the Rose Theatre Trust Company. The company asked the Environment Secretary to protect the theatre by declaring it an ancient monument, but he declined. Thus, the company applied to court for judicial review of the Secretary’s decision not to list the theatre.
Unfortunately, the Rose Theatre Trust Company failed in its application, partly because the judge held that it did not have sufficient interest to bring the case. He said that although one does not need to have a direct financial or legal interest in a matter to have standing, the statute under which the Environment Secretary exercised his discretion neither expressly nor impliedly gave the company a greater right or expectation than any other citizen to have a decision taken lawfully. The company would have possessed sufficient interest if the statute had, for example, stated that people in its position had a legal right to require the Secretary to perform a particular duty. However, the statute did not have that effect.
Furthermore, one did not gain sufficient interest to apply for judicial review in the following cases:
- by merely asserting that one was interested in the matter;
- by many people individually lacking interest joining together to form an association or a company to assert an interest; or
- by writing to the decision-maker, even if the decision-maker provided a reasoned reply.
The judge acknowledged it was true that if a particular individual or group was not given standing in such cases, certain administrative decisions would go unchallenged even if they were clearly unlawful. However, the law did not require the courts to be there for every individual interested in litigating the legality of an administrative decision. The UK Parliament could have given such a wide right of legal access to people, but had not done so.
In fact, ex parte Rose Theatre Trust is no longer good law in the UK, and is treated as an exceptional case by some commentators. Currently, British courts take a broad approach to standing, and the 1995 case ex parte World Development Movement is an example of this. In this decision, the World Development Movement, a campaign group focusing on global justice and the development of the Global South, applied to court to stop the Foreign Secretary from providing aid to Malaysia for the Pergau Dam project. It alleged that the project provided neither economic nor humanitarian benefit to the Malaysian people.
Though the relevant legislation, like the statute in the Rose Theatre Trust case, also did not confer on the Movement or its members any particular rights over and above other citizens, this time the court held that the Movement did have standing to bring the judicial review application. It stressed the importance of vindicating the rule of law by ensuring that public authorities act within the strictures laid down by the law. The Court also indicated that an applicant will possess sufficient interest if these factors are present:
- The issue raised is important. The merits of the challenge are an important, if not the dominant, factor when considering the standing issue. The real question is whether the applicant can show some substantial default or abuse by the decision-maker, not whether the applicant’s own personal rights or interests are involved.
- No other challenger. There is likely to be an absence of any other responsible challenger. For example, if the Foreign Secretary decided not to grant aid, neither the government or any citizen of the foreign country denied aid would be, in practical terms, likely to bring a challenge.
- Applicant has established track record. The applicant plays a prominent role in giving advice, guidance and assistance with regard to the matter.
If the broad approach to standing is applied by the Singapore courts, an organization such as the Singapore Heritage Society might have sufficient interest to bring a case concerning Bukit Brown Cemetery before the High Court. (I should point out I am not suggesting that the Society do so!)
To date, our courts have referred to neither the Rose Theatre Trust nor the World Development Movement case. However, there are indications that the test for standing in Singapore is a fairly liberal one. In Chan Hiang Leng Colin v Ministry of Information and the Arts (1995), the High Court held that a person did not need to have a “particular grievance arising out of the order complained about”. It was “sufficient that there had been an abuse of power which inconvenienced someone”. When that case was appealed, the Court of Appeal approved the following passage from the UK case R v Greater London Council, ex parte Blackburn (1976):
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.
The facts of Blackburn are somewhat amusing. Mr and Mrs Blackburn were of the view that the Greater London Council had not properly carried out its responsibilities by permitting a Danish documentary film called Mera ur kärlekens språk (More About the Language of Love, 1970), which they regarded as too obscene, to be publicly screened. No one had forced the couple to watch the film, but they felt aggrieved that the Council had applied too liberal an obscenity test, and decided to sue the GLC to ensure that it fulfilled its censorship duties in what they believed to be an appropriate manner. The Court of Appeal of England and Wales found that Mr and Mrs Blackburn, as citizens, ratepayers and parents living within the area managed by the Council, had sufficient standing to apply for judicial review, and granted their application on the ground that the GLC had indeed been applying the wrong legal test.
Thus, under the approach in the Chan Hiang Leng Colin cases, it may be that an individual who is a Singapore citizen and taxpayer has sufficient standing to apply for judicial review of the MND’s decision to build the road through the cemetery.
Rules of the game
However, we are not out of the woods yet. Even if someone can establish standing to bring a case, there have to be grounds in administrative law on which the MND’s decision can be challenged. When acting or making decisions, public authorities must adhere to certain well-established legal principles. For instance, they:
- must take into account relevant considerations, and must not take into account irrelevant ones;
- must not make a decision on the basis of errors as to material facts; and
- must not make a decision that is “so outrageous in the defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it” (this is known to lawyers as Wednesbury unreasonableness).
My feeling is that it will probably be very difficult to show that the MND has breached any grounds of judicial review. Is there evidence that the Ministry has failed to take into account relevant considerations, or reached its decision on the basis of incorrect facts? Can its decision be said to be so irrational that no sensible person could have arrived at it? It’s hard to say.
It is important to be aware that in administrative law, the High Court’s role is merely to ensure that public authorities have followed the correct legal principles. It is not the Court’s job to check that the public authority has made the ‘right’ decision, whatever that might be. I particularly like the analogy used by a judge in a 1990 UK decision. The court is like the referee in a football match. His job is to ensure that the footballers play according to the rules of the game. He is not there to descend into the fray and tell the players what strategy to employ, or where best to stand to shoot the ball into the net.
Let us say that the MND has taken all relevant considerations into account before opting to drive the proposed highway through the cemetery. These considerations may include the needs of road users, the environmental and heritage value of the cemetery, the feasibility of diverting the highway elsewhere, alternative measures to reduce traffic congestion, and the costs involved. Once it is shown that the Ministry has done this, it is not for the courts to say that insufficient weight was given to some factors and too much to others, or that a different decision should have been reached. That’s a matter for the Ministry alone.
Of course, people don’t bring court cases only for the sake of winning. It’s conceivable that one might wish to apply for judicial review to give publicity to the Bukit Brown issue, or to oblige the MND to reveal the factors it took into consideration. However, that person must be prepared to lose the case and to bear both the Attorney-General’s legal costs and his or her own lawyer’s fees.
The writer is an Assistant Professor of Law who teaches and researches administrative and constitutional law at the School of Law, Singapore Management University. This commentary is based on a presentation he gave at a forum entitled The Cost and Value of Heritage in Singapore: The Belitung Shipwreck and Bukit Brown Cemetery organized by the Singapore Heritage Society and the School of Law, SMU, on 14 April 2012.
1 Lord Woolf, Jeffrey Jowell, Andrew Le Sueur & Catherine M Donnelly, De Smith’s Judicial Review (6th ed) (London: Sweet & Maxwell, 2007) at 69–70, [2-002].
2 R v Secretary of State for the Environment, ex parte Rose Theatre Trust Co  1 QB 504, High Court (Queen’s Bench) (England & Wales).
3 R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd  1 WLR 386, Divisional Court (Queen’s Bench) (England & Wales).
4 Chan Hiang Leng Colin v Ministry of Information and the Arts  2 SLR(R) 627 at 633, , High Court (Singapore).
5 Chan Hiang Leng Colin v Minister for Information and the Arts  1 SLR(R) 294 at 299, , Court of Appeal (Singapore).
6 R v Greater London Council, ex parte Blackburn  1 WLR 550 at 559, Court of Appeal (England & Wales).
7 Council of Civil Service Unions v Minister for the Civil Service  AC 374 at 410, House of Lords (UK).
8 Named after the case Associated Provincial Picture Houses v Wednesbury Corporation  1 KB 223, Court of Appeal (England & Wales).
9 R v Secretary of State for the Environment, ex parte Hammersmith and Fulham London Borough Council  1 AC 521 at 561, House of Lords (UK).
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