Judicial Review Must have Locus Standi

In her quote, Professor Harlow posits that an applicant for judicial review must have locus standi; a ‘sufficient interest in the matter to which the application relates’. [1] She is arguing that courts should only grant judicial review to individuals personally affected by an administrative action, and not just anyone with no interest who merely desire to review the legality of such actions ‘in the public’s interest’ or as ‘an interested member of the public’. She goes on to state that if no individual interest is affected (i.e. it concerns public interest), it is not up to the judiciary but politics to provide solutions. I disagree with her views and propose that a more liberalized stand on locus standi regarding judicial review of administrative actions should be taken. This paper analyzes this proposal in the context of Singapore administrative law.

The current Singapore position on locus standi regarding judicial review of administrative actions (can represent public or not. Cannot; should be developed. Sg: O53 nth. For cts to develop. flexibility)

The Singapore Order 53 [2] reads, ‘No application for an order of mandamus, prohibition or certiorari shall be made unless leave to make such an application has been granted in accordance with this Rule.’ It does not contain any provision defining locus standi.

The Court of Appeal in Chan Hiang Leng, Colin v Minister for Information and the Arts [3] (‘Colin’) held that Singapore would not follow a higher threshold test [4] at the application for leave stage of O 53, but prefers to adopt the tests advocated by the English courts, which is exemplified in Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses [5] (‘IRC’). Thus the test for locus standi in Singapore is one based on ‘sufficient interest’. This indirectly means that Singapore has not adopted as conservative a view as the Malaysian position in Government of Malaysia v Lim Kit Siang [6] (‘Lim Kit Siang’).

However, it is unclear whether the use of the term ‘sufficient interest’ in Colin is a liberal one akin to the English O 53, based on which public-spirited citizens have managed to obtain judicial reviews despite not having direct interests. Chan Sek Keong CJ has remarked that “In Singapore, although the courts appear to have accepted the same ‘sufficient’ interest’ test to determine whether leave for judicial review should be granted, that is not, in my view, also to say that our courts will apply the test with the same rigour as the UK courts.” [7]

Thus, the locus standi position in Singapore appears to require at least some form of personal interest being affected before allowing access to judicial review of administrative actions. In other words, a civic-minded citizen does not have standing for a judicial review regarding an action purely in the ‘public’s interests’. Public interest litigation is thus curbed.

Since the Singapore O 53 does not define locus standi, there is considerable flexibility for local courts to evolve these rules. Singapore judges can choose to exercise creativity in this matter. The following sections analyze why and how local courts should develop this area of the law towards a much more liberalized state.

Local courts should relax the current locus standi position and allow individuals access to judicial review for acts concerning interests wider than that of their own (i.e. public interests) for the following reasons:

GOOD GOVERNANCE AND PUBLIC ADMINISTRATION

This can be achieved through

Public scrutiny

Civic-minded citizens being able to commence judicial reviews on behalf of the public will provide a socially motivated check on administrative power, helping to highlight administrative abuses and excesses. Knowing that their actions might be subject to close scrutiny, public administrative bodies will be mindful of making good decisions. In a time when much of society is influenced by governmental departments and public authorities, such a practice will help to improve the system of accountability and transparency in government decision-making. This leads to good public administration, which in turn leads to good governance. “Public interest litigation has been proven to have promoted good governance in public administration.” [8] 9

Publicity

Even if the judicial reviews still fail in merit, the widespread publicity usually garnered from a citizen challenging an administrative action will still raise national awareness regarding legality of such actions and put other citizens on guard of possible abuses. This also improves quality of public administration.

Judicial pronouncements

“Judicial pronouncements will later represent the dos and don’ts in public administration and mistakes previously made will not be repeated.” [10] Public administration can be improved with reference to such judicial pronouncements.

B. PHILOSOPHICAL GROUND. CITIZENS HAVE RIGHTS. ROLE OF INDIVIDUALS

It is submitted that it is a citizen’s right to help cure public misdoings. If not a legal right, a citizen certainly has a moral right to it. 28

C. Powerful executive reigns in unwritten and written Constitutions. Cannot be subservient to executive.

“With a strong government based on the Westminster system of parliamentary democracy, the British Parliament reigns supreme as far as its legislative powers are concerned.” 72 . Singapore imported the British common law and its parliamentary institutions and has always been governed by the People’s Action Party (“PAP”). Almost her entire unicameral Parliament is in the hands of that party. With political patronage and controls, a powerful party whip can quite easily keep the legislators in check.75 The overwhelming majority which the government enjoys in the legislature is unsettling at times and there exists concern that even the judiciary will not be enough to restrict the potentially untrammeled powers of the government. It is feared that the sacrosanct law of the land is subservient to the powerful executive which controls the legislative powers.

It is through the pronouncements of the courts that governmental departments are mindful of the limits and excesses of their administrative powers. Courts must see that these great powers and influence are exercised in accordance with law. These views were echoed by the Singapore Court of Appeal in Chng Suan Tze v Minister of Home Affairs, Singapore & Ors. His Royal Highness HRH Raja Azlan Shah [11] said trenchantly: “Every legal power must have legal limits, otherwise there is dictatorship…every discretion cannot be free from legal restraint; where it is wrongly exercised, it becomes the duty of the courts to intervene. “The courts are the only defence of the liberty of the subject against departmental aggression. In these days when government departments and public authorities have such great powers and influence, this is a most important safeguard for the ordinary citizen: so that the courts can see that these great powers and influence are exercised in accordance with law.”

D. SUIT CHANGING TIMES/NEEDS OF SOCIETY (bring in foreign. Say sg lagging behind)

It is timely that our courts should relax standing rules to keep ourselves in touch with the liberalisation that has taken place in most of the common law jurisdictions. Some examples are:

UK

Canada

Australia

Malaysia

India

Bearing in mind that the Indian model will be unsuitable to meet our circumstances, the other illustrations serve as useful guides in developing our locus standi rule. [12] A robust judicial approach to liberalise the rules of locus standi is required as we are living in a period when administrative actions affect every aspect of the ordinary life of the citizens.

E. BETTER REFLECTS DEMOCRACY. Insert some quote abt hsien long saying sg is true democracy.

“Public participation in the deliberation of local government matters is vital if democracy is to flourish.” [13] Judicial control over the executive who in turn has control over the citizens is the hallmark of a vibrant democracy. As accountability and transparency are cardinal principles of good governance, accepting responsibility and the concept of open government are important in a parliamentary democracy. If the courts themselves self- impose strict standing rules in reviewing the decisions of the executive, they are shirking from their duties as the constitutional rampart to the citizens, which contradicts the fact that we pride ourselves as a true democracy founded on the rule of law.

F. POLITICAL PROCESS NOT ENOUGH. REQUIRE CT’S ROLE TO CHECK. (rights still infringed)

Professor Harlow’s assertion that “Where no individual rights are directly or closely affected, the answer lies in the political process.” is unsound. She seems to insinuate that there exists a strict boundary between the judiciary and the politics regarding the locus standi issue. She states that once an individual has no interest in the issue, the matter is beyond purview of the courts. It is pertinent to note that it is not the executive or political process that imposed this limit on locus standi, but the courts themselves. This self-restraint is unnecessary.

Conversely, if the political process alone cannot provide all answers, it will cause disillusionment among citizens if law is not the solution to their problems. Unless those dismayed individuals take this matter to court, the public authorities will continue this course of action. It would only be right if the judiciary extends its role to aid in filling the gap.

Thus, the boundary between the judiciary and the political process need not be so clear-cut. As was argued by Professor Paul Craig, ‘administrative law is always a combination of what is going on in the political world, combined with the reactions of the judiciary.’ 65 In fact, the judiciary is a political institution.

The position of Singapore courts is reinforced by art 93 of the Constitution which provides that the judicial power is vested exclusively in the Supreme Court and the Subordinate Courts in that the courts are empowered to review of the exercise of arbitrary powers of the executive. 92 As Professor Wade also said [14] : ‘The last word on the question of legality rests with the courts and not with the administration.’ 88 When the other arms of the government may be a let-down to the people, the judiciary must rise to the occasion to act against any transgressions of the nation’s laws.

Reasons against + rebuttals (floodgate, US no flood. Book.)

POLITICAL PROCESS ENOUGH. CT NO RIGHT TO INTERVENE (dealt with above)

This has been explained under _____.

EFFICIENCY OF EXECUTIVE IN PRACTICING GOOD GOVERNANCE + FLOODGATES ARGUMENT

Some 372 have argued that that undue constraints imposed by the courts on the decision-making process can impede the efficiency of public administration. “The competing tensions are between allowing too many unmeritorious cases to be fought, which could seriously curtail the efficiency of the Executive in practicing good governance, and allowing meritorious cases to be brought to the courts without being hindered by too many technicalities.” [15] There is also the worry of vexatious claims made only to obstruct and delay administrative action. [16]

“With less judicial review applications to defend, the Government is, at least, spared the need to divert resources away from its primary job of governing the country in order to defend such actions.” [17] Sacrifice ___ for efficiency?  convenience argument.

However, the courts should have no difficulty in dealing with vexatious claims. There are sufficient safeguards such actions. [18]

In fact, relaxing the locus standi position may even serve to improve the quality and efficiency of public administration, as explained in ___.

Floodgates: Lastly, it must not be forgotten that even if the public interest litigant succeeds to meet the threshold locus standi, it does not mean that the litigant will later succeed on the merits of the case. And even if he succeeds on the merits, it also does not mean that he is able to obtain the remedies sought.

INFRINGE UPON SOVEREIGNTY OF PARLIAMENT. AUTONOMY OF DECISION MAKERS

There is fear that the activities of the judiciary will even infringe the sovereignty of Parliament. Excessive zeal might cause judges to transgress the limits of judicial review and engage in politicized judgments 97, which is evident in India [19] . How then would the autonomy of decision-makers be preserved?

This is obvious not the case, at least not in Singapore. (say sth abt balance v good in sg)

LOCAL LIMITS CURBING THE EFFECTIVENESS OF SUCH LIBERALIZATION AND WHAT SHLD BE DONE TO REMOVE THEM

Generally apathetic attitude of citizens / fear of government

The apprehension that the PAP will ‘punish’ anyone who stands up to the executive is present among citizens. Perhaps this stems from how political opponents have been persecuted. This may frighten off public interest litigants.

Generally, the Malaysian and Singaporean public are reluctant to take the government and public bodies to courts. There is always this perennial fear that the government department will ‘punish’ them. They prefer to shy away from a challenge if dissatisfied with a government decision unless provoked by suffering grave personal injustice. To them, acceptable inconvenience is preferable to avoid the greater trouble if the government is taken to courts.

Therefore takes time & must tell them to be less apathetic.

PUBLIC LITIGATION NOT A LUCRATIVE AREA OF LEGAL PRACTICE

public interest litigation is also not a lucrative area of legal practice, and even if there is a very public-spirited citizen who feels very strongly for a particular cause, unless he himself is a lawyer, may not be able to engage a lawyer or a good a lawyer to share his cause for a penny.

Resistance from the government

Naturally, the executive would probably not respond readily to relaxing the rule on locus standi for fear that the sovereignty of their powers would be infringed upon, and who pursuant to the doctrine of separation of powers, believes it should govern with the least interference from the other branches of government. This was discussed in ___. May pass Bills to sidestep/override new position.

However, based on those abovediscussed reasons, leaders of the must not be intolerant of dissent including any complaint against maladministration. They must not be chary of introducing good governance to every level of governmental administration because if it is able to permeate the entire public administration, the problems associated with administrative corruption and abuse will slowly fade away by themselves and die a natural death. A good public administration brings greater respect and support for the executive. It will also receive international acclaim for its fidelity to the rule of law and sincerity in coming to grips with administrative injustices which often grip poor and developing countries.

It is therefore of pivotal importance that the executive should always view public interest litigation as a partner and not an enemy in the administration of a good government.

If the executive is gracious enough and have the fortitude in accepting defeats in courts as well as working hand in hand with the judiciary, in no time an efficient public administration imbued with a high standard of good governance will emerge.

Shift of focus in administrative practices

These views are echoed by Peter Cane that ‘judicial interference with the administrative process leads to the adoption of time-consuming ‘defensive’ administrative practices designed to minimise the risk that decisions will be successfully challenged rather than to improve the ‘quality’ of the decision.

Unlikely to happen in Singapore since there will probably be very little such cases anyway, due to the above reasons.

Maturity of Singapore Judiciary

But is that ideal practically realisable, given that Singapore has only recently adopted such principles, without the institution of the judiciary sufficiently maturing to be mature, strong and fearless so as to be an effective check? 94

SUGGESTED CHANGES OF WORDING TO O53.

CONCLUSION & RECOMMENDATIONS

The Singapore judiciary has adopted a liberal view on locus standi in Colin, albeit the central issue was regarding constitutional supremacy. Perhaps this implies that courts will be willing to liberalize the rule in other aspects. Judges should exercise judicial activism regarding the rule according to Singapore’s current needs, evolving it over time as situations change.

Currently, it appears that there is no pressing or urgent need to completely liberalize the rule. And ____ This is because the system of public administration in Singapore has been given due recognition globally. There is also not much room for any misfeasance by such officers without being noticed or reported to their superiors. Singapore’s civil service is recruited from the brightest and the best of society based on merit.

But the liberalisation process has to start nevertheless to allow it to evolve through the natural course of events. A continued and sustainable public administration is vital for Singapore to survive as a major financial centre in the region. As discussed, there are strong reasons for such liberalization, and any potential arguments or limitations against it are either unfounded or inconsequential. The time has come for local courts to exercise their creativity regarding the locus standi position. After all, truth fears no trial.