Threshold issues are legal requirements in Singapore administrative law that must be satisfied by applicants before their claims for judicial review of acts or decisions of public authorities can be dealt with by the High Court. These include showing that they have standing (locus standi) to bring cases, and that the matters are amenable to judicial review and justiciable by the Court.
Depending on the interest that the applicant seeks to represent, standing can be categorized as either private or public standing. Applicants must establish they have private standing if they seek to represent personal interests. In contrast, applicants who seek to represent the interests of a larger group or the public at large must establish public or representative standing. Where private standing is concerned, the Singapore courts have not yet directly addressed the issue of the standing required to obtain a declaration in an administrative law case, but where constitutional claims are concerned the Court of Appeal held that three elements must exist: (1) the applicant must have a real interest in bringing the case, (2) there must be a real controversy between the parties to the case, and (3) a personal right possessed by the applicant must have been violated. The Court also suggested that the same test applied to applications for prerogative orders. The legal position on public standing in administrative law cases is indeterminate as, to date, no applicant has sought to rely on public standing to obtain leave for judicial review. In constitutional law cases, the Court has drawn a distinction between public and private rights, and held that people will not have standing to vindicate public rights unless they have suffered special damage and have genuine private interests to protect or further.
For a decision by a body to be amenable to judicial review, United Kingdom and Singapore law requires the decision to have some public element, and not to relate exclusively to private law matters. The public element is determined by considering if the body's power stems from a legal source (the "source test"), or if the nature of the body is that it is carrying out some public function (the "nature test"). If the power exercised by a body has a legislative source, it will ordinarily be amenable to judicial review in the absence of compelling reasons to the contrary, but this is not an invariable rule and decisions without a sufficient public element will not be amenable to review. The latter is also the result when a body is regarded as having acted pursuant to a contract between it and the aggrieved party, rather than having exercised its statutory powers.
The subject-matter of a dispute must be justiciable before the High Court will hear the case. A decision by an executive authority will generally be considered non-justiciable if the decision requires the intricate balancing of various competing policy considerations, and judges are ill-equipped to decide the case because of their limited training, experience and access to materials; if a judicial pronouncement could embarrass another branch of government or tie its hands in the conduct of affairs traditionally falling within its purview; or if the decision involves the exercise of a prerogative power that the democratically elected branches are entrusted to take care of. Nonetheless, a dispute may prima facie involve a non-justiciable area but the courts may decide that there is a justiciable matter within it, or the courts may be able to isolate a pure question of law from what is seemingly a non-justiciable issue. Because of the principle that all powers have legal limits, the Attorney-General's exercise of prosecutorial discretion and the power to pardon or grant clemency to convicted persons exercised by the President on the Cabinet's advice are both justiciable in exceptional cases, for instance, where the powers have been exercised unconstitutionally or in bad faith.
Introduction Before an administrative law claim can be heard on the merits by the High Court, the applicant must satisfy a number of legal requirements which may be called "threshold issues". These include showing that he or she has standing (locus standi) to bring the case, and that the matter is amenable to judicial review and justiciable by the Court.
Standing Standing, or locus standi (Latin for "a place to stand"), is a threshold requirement that an applicant must satisfy before a court will permit him or her to proceed with a claim for judicial review. ("IRC"). Depending on the facts of the case, the applicant has to establish one of the two categories of standing. The applicant seeks to establish private standing when he or she purports to represent his or her own interests. In contrast, the applicant seeks to establish public or representative standing when he or she purports to represent the interests of a larger group of people, or the public at large.. Standing is a mixed question of fact and law, which the court determines based on legal principles.IRC, p. 631.
The doctrine of standing prevents applicants from burdening the court with frivolous or vexatious claims. This minimizes disruption in the administrative process. When an administrative decision by a public authority is challenged, implementation of the decision by the authority may be delayed. Therefore, the courts want to restrict access to applicants who have a genuine interest in challenging the decision.. Furthermore, since the courts' resources are limited, restricting access to genuine claims ensures that judicial resources are appropriately allocated..
Private standing Declarations One of the remedies that may be sought by an applicant for judicial review is a declaration, which is a pronouncement by a court stating the legal position between the parties to an action, based on the facts that have been presented to the court.Leyland & Anthony, "The Remedies", pp. 453–470 at 461. The Singapore courts have not yet directly addressed the issue of the standing required to apply for a declaration in an administrative law case, but it is possible they may adopt the test laid down in constitutional law cases. In Tan Eng Hong v. Attorney-General (2012),. the Court of Appeal held that three elements must exist for a person have standing to bring a constitutional challenge: (1) he or she must have a real interest in bringing the case, (2) there must be a real controversy between the parties to the case, and (3) a personal right possessed by the applicant must have been violated.Tan Eng Hong, pp. 523–524, para. 115.
Prerogative orders In Singapore, an applicant must have a "sufficient interest" in the subject of the application to have standing to apply for a prerogative order, that is, a mandatory, prohibiting or quashing order.Chan Hiang Leng Colin v. Minister for Information and the Arts 2 S.L.R.(R.) 627 at 632, para. 11, High Court (Singapore) ("Chan Hiang Leng Colin (H.C.)"). Previously, the rule of standing for mandatory orders was stricter than the rule applicable to prohibiting and quashing orders. To apply for a mandatory order, an applicant had to show a specific legal right in the matter.R. v. Guardians of the Lewisham Union 1 Q.B. 498 at 500, Divisional Court (England and Wales), and R. v. Russell, ex parte Beaverbrook Newspapers Ltd. 1 Q.B. 342 at 348, Div. Ct. (England and Wales), both cited in IRC, p. 630, which was itself cited in Re Lim Chor Pee, ex parte Law Society of Singapore [1985–1986] S.L.R.(R.) 998 at 1013, para. 43, C.A. (Singapore). In contrast, an applicant only had to show that "there had been an abuse of power which inconvenienced someone" to apply for a prohibiting or quashing order.Chan Hiang Leng Colin (H.C.), p. 633, para. 12. This rule of standing for prohibiting and quashing orders was relatively easy to satisfy because such orders were often used to ensure good standards of public administration.Leyland & Anthony, "The Remedies", p. 457.
However, the United Kingdom courts gradually adopted a single sufficient interest test for all prerogative orders.IRC, p. 728. In R. v. Commissioners of Customs and Excise, ex parte Cook (1969),R. v. Commissioners of Customs and Excise, ex parte Cook 1 W.L.R. 450, High Court (Queen's Bench) (England and Wales). for example, the High Court used a sufficient interest test to determine whether an applicant had standing to apply for a mandatory order.Ex parte Cook, p. 455. Singapore followed the UK's move towards a uniform test for all prerogative orders.Chan Hiang Leng Colin (H.C.), p. 633, para. 13. In Re Lim Chor Pee, ex parte Law Society of Singapore (1986),Re Lim Chor Pee, ex parte Law Society of Singapore [1985–1986] S.L.R.(R.) 998, C.A. (Singapore). the Court of Appeal endorsed the sufficient interest test for mandatory orders. In that case, the Law Society of Singapore had applied for a mandamus (now known as a mandatory order) to ensure that the Disciplinary Committee heard and investigated all six charges levied against an advocate and solicitor. The Court, applying the decision of the House of Lords in R. v. Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd. (1981), held that the test for standing was whether the applicant had a sufficient interest in the subject matter, and not whether he or she had a specific legal right.Lim Chor Pee, pp. 1013–1014, paras. 43–45.
In Chan Hiang Leng Colin v. Minister for Information and the Arts (1995), which was a constitutional challenge rather than an administrative law claim, the High Court noted that the sufficient interest test for standing applies to mandatory, prohibiting and quashing orders.Chan Hiang Leng Colin (H.C.), pp. 632–633, paras. 11–13. It also held that the sufficiency of the applicant's interest should be judged in relation to the subject matter of the application.IRC, p. 648, referred to in Chan Hiang Leng Colin (H.C.), p. 633, para. 13. On the other hand, when the case came before the Court of Appeal in Chan Hiang Leng Colin v. Minister for Information and the Arts (1996), ("Chan Hiang Leng Colin (C.A.)"; the ICHRL neutral citation is incorrect as the case was decided in 1996). that court held:Chan Hiang Leng Colin (C.A.), pp. 299–300, paras. 13–14.
In Tan Eng Hong, the Court of Appeal stated that the same test for standing applies to both declarations and prerogative orders,Tan Eng Hong, p. 512, para. 76, interpreting . and read the statements from Chan Hiang Leng Colin quoted above as an implicit acceptance that an applicant must demonstrate the violation of a right personal to him or her to have standing.Tan Eng Hong, p. 513, paras. 78–79. See also (also available online as ).
The Chief Justice of Singapore, Chan Sek Keong, suggested extrajudicially during a 2010 lecture that Singapore courts may not apply the sufficient interest test with the same rigour as the UK courts. A more stringent application of the sufficient interest test would be in line with the green-light approach that the courts adopt in administrative law. Under this approach, the Government commits itself to good administrative practices while the courts play a supporting role by articulating clear rules for the executive to adhere to. Accordingly, the courts may adopt a more discriminating standing test to discourage litigation that will unnecessarily curtail the executive's ability to carry out good governance..
Public standing Public or representative standing is standing possessed by an applicant who brings a case on behalf of a larger group of people, or even in the interest of the general public. The applicant need not show that a personal right or interest has been infringed.. As long as the represented individuals have, or the public has, sufficient interest in the matter, the applicant will be held to have adequate standing to pursue the case..