Vellama V AG (2013)

[2013] 4 SLR 0001.
fm Page 1 Tuesday, October 29, 2013 9:04 AM
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SINGAPORE LAW REPORTS
Vellama d/o Marie Muthu

v
Attorney-General
[2013] SGCA 39
Court of Appeal Civil Appeal No 97 of 2012
Chao Hick Tin JA, Andrew Phang Boon Leong JA and V K Rajah JA
14 January 2013; 5 July 2013
Administrative Law Judicial review Leave to apply for prerogative order and
declaratory relief Application for judicial review filed less than three weeks after
vacancy of seat of elected Member of Parliament Whether there was factual basis
for High Court to grant leave
Administrative Law Judicial review Standing Change of circumstances
between initial application and substantive hearing Whether issue of standing
crystallising at point of first initiation of proceedings
Administrative Law Judicial review Standing Applicant seeking declaration
on Prime Ministers duties under Art 49 Constitution of the Republic of Singapore
(1985 Rev Ed, 1999 Reprint) Whether application based on private or public rights
Whether applicant having to prove special damage to establish standing in
application for declaratory relief predicated on public rights Article 49
Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)
Administrative Law Remedies Declaration Applicant seeking standalone
declaration after withdrawing prayer for prerogative order in proceedings
commenced under O 53 Rules of Court (Cap 322, R 5, 2006 Rev Ed) Whether court
having power to grant standalone declarations in principal application for
prerogative order O 53 r 1 and O 53 r 7 Rules of Court (Cap 322, R 5, 2006 Rev Ed)
Constitutional Law Constitution Interpretation Filling of casual vacancies
in elected Parliamentary seats for single member constituencies Whether Prime
Minister having discretion whether to call by-election Whether Prime Minister
having discretion when to call by-election Article 49 Constitution of the Republic of
Singapore (1985 Rev Ed, 1999 Reprint)
Facts
Following the vacancy of the Parliamentary seat for Hougang Single Member
Constituency (SMC) on 14 February 2012, the appellant a resident voter of
the constituency instituted judicial review proceedings for a mandatory order
requiring the Prime Minister to advise the President of the Republic of
Singapore to issue a writ of election for Hougang SMC within three months
from the date of the vacancy or such other reasonable period as the court
deemed fit. The application also sought a declaration on the proper construction
of Art 49 of the Constitution of the Republic of Singapore (1985 Rev Ed,
1999 Reprint) (the Constitution).
On 2 March 2012, a week after the appellants application, the Prime Minister
announced that he intended to call a by-election in Hougang SMC but had not
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yet decided on its timing. On 3 April 2012, the High Court granted the appellant
leave for a substantive judicial review hearing. The writ of election for Hougang
SMC was issued on 9 May 2012 and the by-election was held on 26 May 2012.
Three days later, the appellant nevertheless proceeded to file her summons
seeking the same mandatory order and a declaration. The appellant later
informed the High Court that she was abandoning her prayer for the mandatory
order. On 1 August 2012 the High Court dismissed the appellants application.
Held, dismissing the appeal:
(1) The authorities were clear that an applicants standing did not crystallise
at the point when proceedings were initiated, but remained subject to review
until the courts arrived at a final determination: at [13] and [14].
(2) In Tan Eng Hong v AG [2012] 4 SLR 476 it was acknowledged that in some
instances our courts had proceeded to hear the case and granted declaratory
relief even if the facts on which the action was based could be described as
theoretical due to a change of circumstances, but it nevertheless had to be shown
that the relief claimed would be of practical significance to the applicant: at [25]
and [26].
(3) Further, it was trite that an applicant could not apply for declaratory relief
if there was no factual basis for such an application: at [15].
(4) The appropriate test for determining an applicants standing turned on
the nature of the rights at stake although, whether it was a public or private right,
it could be prosecuted by private citizens. The applicable principle on standing
where an application for declaratory relief was predicated on public rights had to
be that which was set out in Gouriet v Union of Post Office Workers [1978]
AC 435 and traceable to the second limb of Buckley Js statement in Boyce v
Paddington Borough Council [1901] 1 Ch 109, namely, that the applicant who
asserted no more than a public right must demonstrate that the interference
with, or violation of, such a public right had caused him special damage. The
mere fact that other potential litigants had also suffered damage did not preclude
the applicant from establishing that he had incurred special damage. There
was also merit in the High Court of Australias clarification in Australia
Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 that special
damage referred to a special interest which was not limited to actual pecuniary
loss and need not have been exclusive to the applicant: at [29], [31], [33] and [41]
to [43].
(5) After the by-election in Hougang SMC was held on 26 May 2012, the facts
which underpinned the appellants application were rendered moot and she was
thereafter no different from any other citizen interested in the proper
construction of Art 49 of the Constitution unless she had suffered special
damage. It was abundantly clear that the special damage or special interest
exception had not been made out as the Appellant was not able to point to any
damage which she had suffered or any special interest of hers which had been
affected. Accordingly, the appeal was dismissed: at [38], [43] and [44].
(6) The proper construction of O 53 of the Rules of Court (Cap 322, R 5,
2006 Rev Ed) should be such that an applicant who wished to obtain a
prerogative order and a declaration under this order had, first, to obtain leave to
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Vellama d/o Marie Muthu v AG
make an application for a prerogative order (O 53 r 1(1)(b)). In the same

application he could also apply for a declaratory relief. Once leave was granted,
and upon hearing the parties on the substantive merits, the court could grant
(a) any prerogative order and a declaration; or (b) only a prerogative order
without any declaration; or (c) only the declaration without any prerogative
order: at [53].
(7) Having regard to the role of a Member of Parliament in the Westminster
form of government and on a plain reading of Art 49, it was clear that the
Constitution placed a duty upon the Prime Minister to call a by-election (unless
he intended to dissolve Parliament in the near future) to fill casual vacancies of
elected Members of Parliament which might arise from time to time: at [82].
(8) As there was no prescribed time-frame within which a casual vacancy had
to be filled, s 52 of the Interpretation Act (Cap 1, 2002 Rev Ed) which required
that the prescribed act shall be done with all convenient speed was germane.
Section 52 enshrined the common law concept of a reasonable time, which had
to of necessity take into account all the circumstances relevant to the act to be
carried out. As such, while the Prime Ministers discretion as to the timing of an
election to fill a casual vacancy was subject to judicial review, it was in the nature
of such a fact-sensitive discretion that judicial intervention would only be
warranted in exceptional cases: at [83] to [85].
Case(s) referred to
Australia Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493
(refd)
Boyce v Paddington Borough Council [1903] 1 Ch 109 (folld)
Chng Suan Tze v Minister for Home Affairs [1988] 2 SLR(R) 525; [1998] SLR 132
(refd)
Diplock, Re [1941] 1 Ch 253 (refd)
Eng Foong Ho v AG [2009] 2 SLR(R) 542; [2009] 2 SLR 542 (refd)
Federal Steam Navigation Co Ltd v Department of Trade and Industry
[1974] 1 WLR 505 (refd)
Gibson v Union of Shop, Distributive and Allied Workers [1968] 1 WLR 1187
(refd)
Gouriet v Union of Post Office Workers [1978] AC 435 (folld)
Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12 (refd)
Karaha Bodas Co LLC v Pertamina Energy Trading Ltd [2006] 1 SLR(R) 112;
[2006] 1 SLR 112 (folld)
IRC v National Federation of Self-Employed and Small Businesses Ltd
[1982] AC 617 (refd)
London Passenger Transport Board v Moscrop [1942] AC 332 (refd)
Ooi Ah Phua v Officer-in-Charge Criminal Investigation, Kedah/Perlis
[1975] 2 MLJ 198 (refd)
PP v Mah Chuen Lim [1975] 1 MLJ 95 (refd)
R v Head Teacher of Fairfield Primary School, ex parte W (CO/541/97, transcript:
Smith Bernal) (refd)
R v International Stock Exchange of the United Kingdom and the Republic of
Ireland Ltd, Ex parte Else (1982) Ltd [1993] QB 534 (refd)
[2013] 4SLR
R v Legal Aid Board, ex parte Hardiman (CO/3193/95) (refd)

R v Secretary of State for the Environment, Ex parte Rose Theatre Trust Co
[1990] 1 QB 504 (refd)
R v Secretary of State for the Home Department, Ex parte Fire Brigades Union
[1995] 2 AC 513 (refd)
R v Secretary of State for the Home Department, Ex parte Salem [1999] 1 AC 450
(refd)
R (Giles) v Parole Board [2004] 1 AC 1 (refd)
R (McKenzie) v London Borough of Waltham Forest [2009] EWHC 1097
(Admin) (refd)
R v Secretary of State for the Home Department (18 December 2000) (refd)
Ricket v The Metropolitan Railway Co (1867) LR 2 HL 175 (refd)
Secretary of State for the Home Department v Rehman [2003] 1 AC 153 (refd)
Stockport District Waterworks Co v Manchester Corp (1862) 9 Jur NS 266 (refd)
Tai Choi Yu v Government of Malaysia [1994] 1 MLJ 677 (refd)
Tan Eng Hong v AG [2012] 4 SLR 476 (folld)
Vellama d/o Marie Muthu v AG [2012] 4 SLR 698 (not folld)
Winterbottom v Lord Derby (1867) LR 2 Ex 316 (refd)
Yip Kok Seng v Traditional Chinese Medicine Practitioners Board
[2010] 4 SLR 990 (refd)
Yong Vui Kong v AG [2011] 2 SLR 1189 (refd)
Legislation referred to
Constitution (Amendment) Act 1965 (Act 8 of 1965) ss 1, 7
Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) Art 49(1)
(consd);
Arts 12, 38, 39(1), 46(2)(b), 55, 56, 57, 66
Criminal Justice Act 1988 (c 33) (UK) s 171(1)
Immigration Act 1971 (c 77) (UK)
Interpretation Act (Cap 1, 2002 Rev Ed) ss 2(1), 52
Parliamentary Elections Act (Cap 218, 2011 Rev Ed) s 24(2A)
Penal Code (Cap 224, 2008 Rev Ed) ss 294(a), 377A
Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 53 (consd);
O 15 r 16
Rules of the Supreme Court (Amendment No 3) 1977 (SI 1977 No 1955) (UK)
O 53 r 3(5)
Sabah, Sarawak and Singapore (State Constitutions) Order in Council 1963
(SI 1963 No 1493) Art 33
Senior Courts Act 1981 (c 54) (UK) s 31(3)
Singapore Colony Order in Council 1946 (Statutory Rules and Orders 1946
No 464) s 23(1)
Singapore Colony Order in Council 1955 (SI 1955 No 187) ss 51(1), 51(2)
[2013] 4SLR
Ravi s/o Madasamy (LF Violet Netto) for the appellant;

Chong Gek Sian David SC, Low Siew Ling and Lim Sai Nei (Attorney-Generals
Chambers) for the respondent.
[Editorial note: The decision from which this appeal arose is reported at [2012]
4 SLR 698.]
5 July 2013
Judgment reserved.
Chao Hick Tin JA (delivering the judgment of the court):

Introduction
1
Originating Summons No 196 of 2012 (OS 196/2012) was instituted
by the appellant (the Appellant) following the vacancy of the Hougang
single member constituency (SMC) under Art 46(2)(b) of the
Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)
(the Constitution), as a result of the incumbent Member of Parliament
(hereinafter referred to as MP or Member as appropriate), Mr Yaw Shin
Leong, being expelled from the political party for which he stood in the
General Election 2011. In OS 196/2012, the Appellant sought a declaration
as to the proper construction of Art 49 of the Constitution and also a
mandatory order requiring the Prime Minister to advise the President of
the Republic of Singapore (the President) to issue a writ of election for
Hougang SMC within three months from the date of the vacancy or such
other reasonable period as the court deems fit. Following leave granted
pursuant to O 53 r 1 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed)
(the Rules of Court), the High Court judge (the Judge) ruled that
the Prime Minister has the full discretion to determine if he wishes to call
a by-election to fill the vacancy and, if so, when such a by-election should
be held. The Appellant, being dissatisfied with that ruling, appeals to
this court.
The background
2
On 14 February 2012 the seat for Hougang SMC, under which the
Appellant was a resident voter, became vacant on account of the expulsion
of Mr Yaw Shin Leong from the Workers Party of Singapore (the
Workers Party). Thereafter some exchange of views between Members
took place in the media. The Member for the Holland-Bukit Timah group
representation constituency (GRC), Mr Christopher de Souza, tabled a
question in Parliament asking whether the Prime Minister was considering
calling a by-election in Hougang SMC and, if so, when. On 9 March 2012,
the Prime Minister answered with the following statement (see Singapore
Parliamentary Debates, Official Report (9 March 2012) vol 88):
I intend to call a by-election in Hougang to fill this vacancy. However, I
have not yet decided on the timing of the by-election. In deciding on the
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timing, I will take into account all relevant factors, including the well being of
Hougang residents, issues on the national agenda, as well as the international
backdrop which affects our prosperity and security. [emphasis added]
3
However, on 2 March 2012, one week before the Prime Ministers
statement, the Appellant had already filed OS 196/2012.
4
On 3 April 2012, leave was granted by the Judge to apply for the
mandatory order. The next day, 4 April 2012, the Attorney-General filed a
notice of appeal against the leave given by the Judge.
5
On 9 May 2012, the President, upon the advice of the Prime Minister,
issued a writ of election for Hougang SMC (the Writ of Election).
Following this development, the Appellant wrote to the Attorney-General
stating that as the factual objective of her litigation has now been achieved
timeously, she is prepared to withdraw her application in OS 196.
6
On 16 May 2012, the Attorney-General withdrew his appeal against
the decision granting leave to the Appellant in OS 196/2012. The byelection was duly held on 26 May 2012 and the candidate for the Workers
Party was returned to the seat for Hougang SMC. However, on 29 May
2012 the Appellant nevertheless proceeded to file Summons No 2639 of
2012 seeking the same mandatory order and declaration. Following the
dismissal on 5 July 2012 of certain interlocutory applications brought by
both parties, oral arguments from both parties on the substantive merits
were heard on 16 July 2012. We should add that at the latter hearing
counsel for the Appellant informed the court that the Appellant was
abandoning her application for the mandatory order (see Vellama d/o
Marie Muthu v AG [2012] 4 SLR 698 (the Judgment) at [14]). On
1 August 2012, the Judge delivered his judgment, dismissing the substantive
prayer which the Appellant sought, namely, a declaration that the Prime
Minister must within the period of three months of a seat becoming vacant,
or such other reasonable period, advise the President to issue the writ of
election.
Decision of the Judge
7
In his judgment the Judge addressed two issues:

(a) Whether the court has the power to grant standalone
declarations in an application made under O 53 of the Rules of Court
for a prerogative order which also included a prayer for declaratory
reliefs (the procedural issue) (at [35] of the Judgment); and
(b) Whether the Prime Minister has the discretion to call or not to
call a by-election to fill an elected Member vacancy, and if he must call
for such a by-election, the period within which he should do so (the
substantive issue) (at [115] of the Judgment).
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8
In addition to these two issues addressed by the Judge, the parties
have each raised an additional point. The Appellant has raised a novel
argument that, by virtue of Art 39(1)(a) of the Constitution, Parliament is
not properly constituted where the number of elected MPs is less than that
required to be returned at a general election (the Quorum issue). This is
relied upon to buttress the Appellants contention that the Prime Minister
must call a by-election to fill a vacancy which occurs during Parliaments
term, commonly referred to as a casual vacancy. On the other hand, the
Attorney-General has contended that the Appellant lacks locus standi to
pursue the application for a declaration (the locus standi issue).
The Judges decision on the procedural issue
9
The procedural issue centres upon the interpretation of O 53 r 1 and
O 53 r 7 as amended by the Rules of Court (Amendment No 2) Rules 2011,
which came into effect on 1 May 2011. These provisions now read:
No application for Mandatory Order, etc., without leave (O. 53, r. 1)
1.(1) An application for a Mandatory Order, Prohibiting Order or
Quashing Order (referred to in this paragraph as the principal application)
(a)
may include an application for a declaration; but
(b) shall not be made, unless leave to make the principal application
has been granted in accordance with this Rule.
Power of Court to grant relief in addition to Mandatory Order, etc.

(O. 53, r. 7)
7.(1) Subject to the Government Proceedings Act (Cap. 121), where, upon
hearing any summons filed under Rule 2, the Court has made a Mandatory
Order, Prohibiting Order, Quashing Order or declaration, and the Court is
satisfied that the applicant has a cause of action that would have entitled the
applicant to any relevant relief if the relevant relief had been claimed in a
separate action, the Court may, in addition, grant the applicant the relevant
relief.
10 Before the amendments were made to this order in 2011, no

declaratory relief could be sought by an applicant in addition to the
prerogative order(s) prayed for. The Judge, in this case, having examined
the amended rules, particularly the rationale for the 2011 amendments,
concluded that under O 53 the court is not permitted to grant standalone
declaratory relief because:
(a) Order 53 r 1(1)(a) expressly labels an application for a
declaration as being included in the principal application for a
prerogative order;
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(b) no specific leave is required in relation to the declaratory relief

sought, thus preserving the distinction between prerogative orders
and declaratory relief;
(c) the word or which appears before the word declaration in
O 53 r 7(1) should not be construed as disjunctive; and
(d) in the premises, any declaratory order must be appended to
and contingent upon a prerogative order (at [33] of the Judgment).
Locus standi
11 Before we proceed to deal with the procedural and substantive issues
decided by the Judge, there is a preliminary but important concern, raised
by the Attorney-General, which must be addressed the Appellants locus
standi to seek the declaratory relief. The Judge granted the Appellant leave
to apply for judicial review on 3 April 2012; at that point in time the
by-election in Hougang SMC had yet to be called, and there was then no
definite indication as to when it would occur although the Prime Minister
did in the statement issued on 9 March 2012 declare that he intended to call
an election to fill the vacancy. The Attorney-General did not dispute the
Appellants locus standi at the leave hearing (see Vellama d/o Marie Muthu
v AG [2012] 2 SLR 1033 at [11]). However, in submissions before the High
Court, the Attorney-General contended that the Appellant no longer had
the requisite locus standi to seek declaratory relief as, the by-election having
been held, she had ceased to have a real interest in continuing with the
proceedings. The Attorney-General again invited this court to revisit the
issue of locus standi in the determination of the present appeal.
12 This raises the potentially vexing problem of whether the Appellant
had standing to continue seeking a declaration under O 53 of the Rules of
Court given that the factual substratum for her claim had collapsed by
9 May 2012 when the Prime Minister announced the Hougang SMC byelection. At its root, this is a question about whether standing should be
regarded as having crystallised at the point of time when proceedings are
initiated, or whether it should instead be treated as a live issue open to
review at every stage of the proceedings.
The point of crystallisation
13 The Judge relied on the decision of Buckley J in Gibson v Union of
Shop, Distributive and Allied Workers [1968] 1 WLR 1187 (Gibson) for
the proposition that subsequent events will not affect an applicants right
for his case to be tried (at [118] of the Judgment). The Attorney-General has
countered with multiple authorities where the English courts have
dismissed applications which were either overtaken by events or no longer
of practical benefit to the individual litigant. The case most directly on
point appears to be the decision of the House of Lords in Inland Revenue
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Commissioners v National Federation of Self-Employed and Small Businesses

Limited [1982] AC 617 (National Federation), in which their Lordships
were unanimous in holding that the Divisional Courts decision on
standing was open to review on appeal. The reason given was that the court
at the leave stage might not have the full facts before it to make a conclusive
determination of the applicants standing. This was succinctly explained by
Lord Fraser of Tullybelton at 645DF:
I recognise that in some cases, perhaps in many, it may be impracticable to
decide whether an applicant has a sufficient interest or not, without having
evidence from both parties as to the matter to which the application relates,
and that, in such cases, the court before whom the matter comes in the first
instance cannot refuse leave to the applicant at the ex parte stage, under rule
3(5). The court which grants leave at that stage will do so on the footing that
it makes a provisional finding of sufficient interest, subject to revisal later on,
and it is therefore not necessarily to be criticised merely because the final
decision is that the applicant did not have sufficient interest. But where, after
seeing the evidence of both parties, the proper conclusion is that the
applicant did not have a sufficient interest to make the application, the
decision ought to be made on that ground.
14 Following the National Federation case, it is the undoubted position

of English law that the issue of standing, although determined as a
preliminary issue, may be re-opened at the substantive hearing of the
application for judicial review. This proposition of the law espoused in
National Federation has been applied in subsequent cases such as R v
Secretary of State for the Environment, ex parte Rose Theatre Trust Co
[1990] 1 QB 504 at 519520 and R v International Stock Exchange of the
United Kingdom and the Republic of Ireland Ltd, ex parte Else (1982) Ltd
[1993] QB 534 at 551. A similar approach can also be discerned in a
succession of cases analysed at [20][23] below. In the light of such
overwhelming authority the short answer to the root question is that the
applicants standing does not crystallise at the point when proceedings are
initiated, but remains subject to review until the courts arrive at a final
determination.
Whether the Appellant ought to have standing to seek standalone
declarations
15 It is trite that an applicant cannot apply for declaratory relief if there is
no factual basis for such an application. However, the English case law
suggests that the courts do exercise significant discretion in relation to the
question whether the applicant continues to have standing following a
change of circumstances which renders the matter factually moot.
16 The leading local authority on the requirement of standing to seek
declaratory relief is Karaha Bodas Co LLC v Pertamina Energy Trading Ltd
[2006] 1 SLR(R) 112 (Karaha Bodas) which was affirmed in Tan Eng
Hong v AG [2012] 4 SLR 476 (Tan Eng Hong) at [115]. The principles
10
[2013] 4SLR
expounded in Karaha Bodas were distilled by this court in Tan Eng Hong to
these three basic propositions (at [72]):
(a)
the applicant must have a real interest in bringing the action (at [19]);
(b) there must be a real controversy between the parties to the action for
the court to resolve (at [19]); and
(c) the declaration must relate to a right which is personal to the applicant
and which is enforceable against an adverse party to the litigation (at [15],
[16] and [25]).
17 It is also important to highlight that the English rule on standing,

based on O 53 r 3(5) of the English Rules of the Supreme Court
(Amendment No 3) 1977 (SI 1977 No 1955) (UK) (and now s 31(3) of the
Senior Courts Act 1981 (c 54) (UK)), only requires the applicant to have a
sufficient interest in the matter to which the application relates
[emphasis added in bold]. Because of this change, there appears to be
greater scope in the English courts to grant leave where there is public
interest in the litigation of the matter even though the applicant is not
personally affected. The following statement of Lord Diplock in National
Federation at 644EG is pertinent:
It would, in my view, be a grave lacuna in our system of public law if a
pressure group, like the federation, or even a single public-spirited taxpayer,
were prevented by outdated technical rules of locus standi from bringing the
matter to the attention of the court to vindicate the rule of law and get the
unlawful conduct stopped. The Attorney-General, although he occasionally
applies for prerogative orders against public authorities that do not form part
of central government, in practice never does so against government
departments. It is not, in my view, a sufficient answer to say that judicial
review of the actions of officers or departments of central government is
unnecessary because they are accountable to Parliament for the way in which
they carry out their functions. They are accountable to Parliament for what
they do so far as regards efficiency and policy, and of that Parliament is the
only judge; they are responsible to a court of justice for the lawfulness of what
they do, and of that the court is the only judge. [emphasis added]
18 Despite the more expansive landscape for judicial review in the UK, it
is nevertheless instructive to examine the English cases where the issue of
standing of the applicant has been reviewed in the light of new or changed
circumstances as a starting point for determining our own approach on the
matter.
19 In Gibson ([13] supra), which pre-dated O 53 r 3(5) of the English
Rules of the Supreme Court (Amendment No 3) 1977, the factual
substratum fell away two weeks from the start of the substantive hearing,
when the applicants suspension from the trade union which was the
subject of the requested declaratory relief came to an end. Buckley J,
sitting in the Chancery Division of the High Court, nevertheless granted
[2013] 4SLR
11
leave for the action to proceed to trial on the basis that there remained a
good ground of complaint, not of an academic character but involving
substantial legal issues (at 1189). At the same time, Buckley J noted that the
matter was not a purely academic one as the propriety of the suspension
(at 1190):
may well have repercussions which are not in the nature of legal results
flowing from the actual disciplinary action, but repercussions which might
affect the plaintiff in his union in the future; if, for instance, he desired to seek
office in the future in the union.
Viewed in context, therefore, Gibson does not lend unequivocal support for
the proposition that applicants can have standing to seek declarations
which are of no practical importance, as the courts decision was ultimately
still predicated on an identifiable private interest.
20 Gibson can be compared with a series of cases in which the English
courts have dismissed applications on a preliminary footing after leave to
apply had been granted. First, in R v Legal Aid Board, ex parte Hardiman
(CO/3193/95) (ex parte Hardiman) the applicant brought proceedings to
review the Legal Aid Boards decision to discharge her legal aid certificate.
The remedies sought appeared to include a quashing order and damages,
but not declaratory relief. Between the time that leave to apply was granted
and the date of the substantive hearing, the Legal Aid Board rescinded its
decision and restored legal aid to the applicant. Ognall J dismissed the
application on the basis that the principal relief sought would have been
entirely a purposeless exercise (ex parte Hardiman at 2). Second, in R v
Head Teacher of Fairfield Primary School ex parte W (CO/541/97,
transcript: Smith Bernal) (ex parte W), leave was granted to apply for,
inter alia, a declaration that the head teacher and governors of the Fairfield
Primary School had breached their statutory obligations by failing to take
disciplinary action against a student who had injured the applicant. By the
time of the substantive hearing, both students were almost due to leave the
school. Scott Baker J held that there would be no practical benefit to the
applicant, and that:
where the interest has lapsed between the granting of leave and the hearing
of the substantive application, that may well be a matter that falls to be
taken into account when considering whether the dispute has ceased to be of
practical significance to the parties.
21 The third case also placed emphasis on the issue of practical

significance. In R (on the application of Barnes) v Secretary of State for the
Home Department (18 December 2000) (Barnes), leave was granted to the
applicant to seek a declaration that the Secretary of States policy on the
return of General Pinochet to Chile was unlawful. The applicant failed at
first instance. The Court of Appeal dismissed the applicants appeal, Sir
Murray Stuart-Smith (as he then was), being of the view that the applicant
simply had no standing, said (at [9] and [11]):
12
[2013] 4SLR
The judge who dealt with this matter at first instance, Scott Baker J, gave a
clear and reasoned judgment why the application should not be granted. I
agree with it. I would add that in fact I do not think that the applicant has any
locus standi or sufficient interest to bring these proceedings against the
Secretary of State in any event.
As I say, I take the view that Mr Barnes has no sufficient interest to make this
application in any event and, as Scott Baker J pointed out, the relief really
which the applicant is seeking is quite out of the question, even if he did have
an arguable case, because it is all past history now. It is all water under the
bridge. General Pinochet has gone back to Chile. It is a matter for the
Chileans to decide whether they are going to try him or not. The courts will
not make declarations of legality or lawfulness which can have no bearing on
tangible events.
[emphasis added]
22 Finally, in R (McKenzie) v Waltham Forest London Borough Council

[2009] EWHC 1097 (Admin) (McKenzie), the applicant sought
declarations relating to the local authoritys refusal to provide her with
suitable accommodation when she was due to give birth. In the interim
between the grant of leave and the substantive hearing, the applicant was
given the accommodation which she had requested for, thereby rendering
the declarations entirely academic. Belinda Bucknall QC, sitting as a deputy
judge of the High Court, declined to decide on the academic points raised
as the declarations sought were entirely fact-sensitive, rendering general
guidance an unsafe course for any court to attempt (see McKenzie at [27]).
It might also be observed that this analysis is generally applicable to the
foregoing cases (ex parte Hardiman, ex parte W, and Barnes) as well. Those
cases were all fact-sensitive in the sense that the applicants were seeking
redress for violations which were highly specific to their own personal
circumstances.
23 On the other hand, there are cases where the English courts have
found that the applicant had standing to proceed notwithstanding that the
factual substratum which gave rise to the institution of the proceeding had
collapsed. A prime example of such a case arose in R (Giles v Parole Board
[2004] 1 AC 1 (Giles). The applicant pleaded guilty to certain offences and
was specifically sentenced to a seven-year jail term in total. He sought a
declaration that the appropriate test for the release of determinate sentence
prisoners should be the same as for discretionary life prisoners. Shortly
before leave was granted the applicant was released from prison, thereby
rendering the proceedings entirely without any practical significance for
him. Despite this, the judges at both the leave stage and at first instance
thought that as the applicant had raised a matter of public importance
which affected the liberty of other persons, the courts should make a
definitive pronouncement sooner rather than later. The applicant was
successful at first instance but overruled on appeal. The House of Lords
[2013] 4SLR
13
upheld the Court of Appeals decision. Neither appellate court suggested,

however, that the application should have been dismissed for want of
standing although we should also point out that the question of standing
was not specifically raised in either appeal.
24 Apart from reiterating the point that the applicants standing to seek
judicial review is not a matter confined to the leave stage of proceedings, the
foregoing English authorities also reveal that the English courts have
generally been reluctant to find that an applicant continues to have locus
standi to seek a declaration when the remedies sought would not augur any
practical significance save where there are compelling issues of public
interest which affect other persons still in the applicants former
predicament. It seems to us that the correct English position on this issue is
succinctly encapsulated in the following dictum of Lord Slynn of Hadley in
R v Secretary of State for the Home Department, ex parte Salem
[1999] AC 450 (Salem) at 457AB:
The discretion to hear disputes, even in the area of public law, must, however,
be exercised with caution and appeals which are academic between the
parties should not be heard unless there is a good reason in the public interest
for doing so, as for example (but only by way of example) when a discrete
point of statutory construction arises which does not involve detailed
consideration of facts and where a large number of similar cases exist or are
anticipated so that the issue will most likely need to be resolved in the near
future.
Judicial discretion in our law of standing

25 The above passage from Salem was also cited by this court in Tan Eng
Hong ([16] supra at [145]), albeit without specifically endorsing the
considerations outlined in Lord Slynns speech, viz, a discrete point of
statutory construction which could affect a large number of similar cases
presently or in the near future. However, there was a general
acknowledgement in Tan Eng Hong (at [143]) that in some circumstances
the court may proceed to hear the case and grant declaratory relief even if
the facts on which the action is based can be described as theoretical:
Where the circumstances of a case are such that a declaration will be of
value to the parties or to the public, the court may proceed to hear the case
and grant declaratory relief even though the facts on which the action is based
are theoretical. We do not necessarily see this as an exception to the real
controversy requirement as we are of the view that it can logically be said
that where there is a real legal interest in a case being heard, there is a real
controversy to be determined.
26 It seems to follow by implication from this passage in Tan Eng Hong

that the court may recognise an applicants standing to seek judicial review
even where there is no violation of a personal right the third limb of the
Karaha Bodas test so long as there is a real legal interest and a real
14
[2013] 4SLR
controversy. This statement though apparently broad must be viewed in its

proper context. It must be kept in mind that Tan Eng Hong raised the
question as to whether s 377A of the Penal Code (Cap 224, 2008 Rev Ed)
offended Art 12 of the Constitution and should be struck down. There,
while the Public Prosecutor had decided not to prosecute the applicant
under s 377A but under s 294(a) of the Penal Code instead, and to that
extent the constitutional question had arguably become theoretical in
respect of the particular act for which the charge was brought, the applicant
still had a real interest in the question having regard to his sexual
orientation. Another similar act of his in the future could very well attract a
prosecution under s 377A. Thus, so long as s 377A remains on the statute
book, it could not be said that the personal rights of the applicant in Tan
Eng Hong would not be affected. To draw a parallel from the English cases
cited at [20][23] above, it is evident that the constitutionality of s 377A is
of great practical significance to the applicant.
27 The issue in the present appeal relates to the discretion of the Prime
Minister under Art 49 of the Constitution. Arguably, before the by-election
was held, the appellant could assert that she, as a resident of the
constituency, was entitled to vote in an MP to represent her and other
Hougang residents in Parliament. To that extent, her private rights as a
resident were arguably affected. However, now that an election has been
held and an MP duly elected, her interest in Art 49 can no longer be framed
as a private right. Having said that, the public at large undoubtedly have an
interest in the issue raised as casual vacancies can arise from time to time
whereupon the issue will become real.
Distinction between public and private rights
28 At this juncture there is a need for us to address the distinction
between public rights and private rights and in this regard we would first set
out what this court stated in Tan Eng Hong (at [69]):
In Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12 at 27, the
majority of the Malaysian Supreme Court ruled that to possess locus standi,
an applicant must show that he had a private right which had been infringed.
If a public right was involved, the applicant must show that he had suffered
special damage as a result of the public act being challenged and that he had a
genuine private interest to protect or further. It is not disputed that in the
present appeal, the rights concerned are not public rights. To clarify the
terminology used here, a public right is one which is held and vindicated by
public authorities, whereas a private right is one which is held and vindicated
by a private individual. Therefore, despite being a matter of public law, a
constitutional right is a private right as it is held and can be vindicated by
individuals on their own behalf. [emphasis added]
29 The appropriate test for determining standing turns on the nature of

the rights at stake although, whether it is a public or private right, it can be
prosecuted by private citizens. Under English law there are important
[2013] 4SLR
15
substantive differences depending on the nature of the right asserted an

applicant who is suing in respect of his right as a member of the public
would have to join the Attorney-General in a relator action, unless he could
establish that he had personally suffered special damage (see Stockport
District Waterworks Co v Manchester Corporation (1862) 9 Jur NS 266
at 267). In Boyce v Paddington Borough Council [1903] 1 Ch 109 (Boyce)
at 113114, Buckley J provided some guidance as to how to differentiate
between a public and private right:
The public are not owners of lights overlooking the space, and there is no
public right to access of light to any such windows. The public right is to have
the open space so kept as to allow the enjoyment by the public of the space in
an open condition, free from buildings. That right the plaintiff is entitled to
as a member of the public; but any right of access of light to the windows of
his property is not a public right. It is not a right which he enjoys as one of the
public, or which any member of the public enjoys in common with himself.
If, therefore, he claims upon the footing that he has a right to the access of
light to his windows, he is suing in respect of a private, and not a public, right,
and the Attorney-General is not a necessary party.
30 It would seem from the cited passage that the distinction between
public and private rights has its etymological roots in the law of nuisance.
Public nuisance can be traced as far back to the creation of the Assize of
Novel Disseisin in the early thirteenth century (see J R Spencer, Public
Nuisance A Critical Examination (1989) 48 CLJ 55 (Spencer) at 5659).
Sir James Fitzjames Stephen describes public nuisance in A General View of
The Criminal Law of England (Macmillan and Co, 2nd Ed, 1890) at 105 as
any act not warranted by law, or an omission to discharge a legal duty,
which inconveniences the public in the exercise of rights common to all Her
Majestys subjects. The action in public nuisance was heard in the criminal
courts and prosecuted by the sheriff and later the Attorney-General
(Spencer at 59). In contrast, private nuisance has been a tortious cause of
action from its inception. A hybrid action was permitted in the sixteenth
century where the courts created an exception for individuals who suffered
special damage from a public nuisance to seek injunctions in the same
manner as an action under private nuisance. This exception was then
gradually applied in cases involving individuals who sought to restrain
public nuisances caused by public bodies (eg, Winterbottom v Lord Derby
(1867) LR 2 Ex 316, Ricket v The Metropolitan Railway Co (1867) LR 2 HL
175). These cases illustrate how private law modalities were imported into
the sphere of public law remedies, culminating in Buckley Js celebrated
statement in Boyce at 114:
A plaintiff can sue without joining the Attorney-General in two cases: first,
where the interference with the public right is such that some private right of
his is at the same time interfered with (e.g., where an obstruction is so placed
in a highway that the owner of the premises abutting upon the highway is
specially affected by reason that the obstruction interferes with his private
16
[2013] 4SLR
right to access from and to his premises to and from the highway); and,
secondly, 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.
31 The House of Lords, first in London Passenger Transport Board v

Moscrop [1942] AC 332 (Moscrop) at 345, and then in Gouriet v Union of
Post Office Workers [1978] AC 435 (Gouriet) (at 483484 per Lord
Wilberforce, 518 per Lord Edmund-Davies and 522 per Lord Fraser),
accepted the above statement as the applicable test for standing to seek
declaratory relief against a public body. In Karaha Bodas ([16] supra), this
court adopted the propositions expounded in Gouriet as the applicable law
on standing for declaratory relief under O 15 r 16 of the Rules of Court as
the English rules of court were then identical to ours. The test set out in
Karaha Bodas was then applied in Tan Eng Hong (at [76], citing Eng Foong
Ho v AG [2009] 2 SLR(R) 542 at [18]) for applications under O 53 r 1 of the
Rules of Court in the context of private rights. It now falls on this court to
determine the applicable principle on standing where an application for
declaratory relief is predicated on public rights. By parity of reasoning,
further supported by this courts approval of Government of Malaysia v Lim
Kit Siang [1988] 2 MLJ 12 in Tan Eng Hong at [69] (see [28] above), the
applicable principle must be that which was set out in Gouriet and traceable
to the second limb of Buckley Js statement in Boyce (see [30] above),
namely, that the applicant who asserts no more than a public right must
demonstrate that the interference with, or violation of, such a public right
has caused him special damage.
32 In the context of the law of nuisance, the distinction between public
nuisance and private nuisance has been a subject on which numerous
commentators have expressed frustration most notably by
Prof F H Newark, in The Boundaries of Nuisance (1949) 65 LQR 480
at 480, who described nuisance as a mass of material which proves so
intractable to definition and analysis that it immediately betrays its mongrel
origins. However, within the field of public law the distinction between
public and private rights is more readily explicable. Where the alleged
interference with the public interest also affects an applicants private right,
the court will recognise the applicants standing to seek relief. This is so
regardless of the existence of identical private rights held by other potential
litigants in the same class as the applicant in this regard we are reminded
of what Lord Wilberforce stated in Gouriet at 483H:
A right is none the less a right, or a wrong any less a wrong, because
millions of people have a similar right or may suffer a similar wrong.
33 Where the applicant asserts no more than a public right which is

shared in common with other citizens, however, standing accrues only if a
nexus between the applicant and the desired remedy is established by
demonstrating special damage. Public rights are shared in common
[2013] 4SLR
17
because they arise from public duties which are owed to the general class of
affected persons as a whole. It is in this sense that public rights are held
and vindicated by public authorities (see [28] above). As public rights are
shared with the public in common, an applicant cannot have standing
unless he has suffered some special damage which distinguishes his claim
from those of other potential litigants in the same class. Furthermore, if
special damage were not to be required, it is likely that the courts will be
inundated by a multiplicity of actions, some raised by mere busybodies and
social gadflies, to the detriment of good public administration. Action by a
public authority could very well be impeded every step of the way. The
burden of having to bear costs may not be a sufficient deterrence. There is a
need for balance and that balance is to be found in the requirement to show
special damage or special interest, to adopt the term used by the
Australian courts (see [41] below). This requirement is a safeguard against
essentially political issues, which should be more appropriately ventilated
elsewhere, being camouflaged as legal questions. At the same time, we do
not think that the balance would be fairly calibrated if proof of special
damage requires the applicant to take on the impossible task of
demonstrating that it is only he, and no one else, who has suffered damage.
In other words, the mere fact that other potential litigants have also suffered
damage does not preclude the applicant from establishing that he has
incurred special damage (also see [42][43] below).
34 Taken collectively, these rules on standing espouse an ethos of judicial
review focused on vindicating personal rights and interests through
adjudication rather than determining public policy through exposition.
Matters of public policy are the proper remit of the Executive, and
decoupling judicial review from the fundamental precepts of adversarial
litigation would leave the courts vulnerable to being misused as a platform
for political point-scoring. One can do no better than to repeat the words of
Lord Wilberforce in Gouriet at 482DF:
Surely, it is said, since the whole matter is discretionary it can be left to the
court. The court can prevent vexatious or frivolous, or multiple actions
leave it in the courts hands. I cannot accept this either. The decisions to be
made as to the public interest are not such as courts are fitted or equipped to
make. The very fact, that, as the present case very well shows, decisions are of
the type to attract political criticism and controversy, shows that they are
outside the range of discretionary problems which the courts can resolve.
Judges are equipped to find legal rights and administer, on well-known
principles, discretionary remedies. These matters are widely outside those
areas.
35 Lord Diplock added further weight to this account of the core

function of the courts when he said at 501DF:
The only kinds of rights with which courts of justice are concerned are legal
rights; and a court of civil jurisdiction is concerned with legal rights only
when the aid of the court is invoked by one party claiming a right against
18
[2013] 4SLR
another party, to protect or enforce the right or to provide a remedy against

that other party for infringement of it, or is invoked by either party to settle a
dispute between them as to the existence or nature of the right claimed. So for
the court to have jurisdiction to declare any legal right it must be one which is
claimed by one of the parties as enforceable against an adverse party to the
litigation, either as a subsisting right or as one which may come into existence
in the future conditionally on the happening of an event.
36 At the same time, it is important to note that these principles on

standing have grown out of, and apply only to, cases which are principally
related to the adjudication of private rights and interests. We do not have
occasion here to address whether the same principles are equally germane
to applications founded purely on the breach of public duties which do not
generate correlative public or private rights.
Application to the present appeal
37 The present appeal relates to the scope and exercise of the Prime
Ministers discretion to call an election to fill a casual vacancy of an elected
Member. When the Appellant filed OS 196/2012 on 2 March 2012, she was
acting in her personal capacity as a directly affected voter of an
unrepresented constituency. In her supporting affidavit filed on 2 March
2012, the Appellant explained that she had been experiencing personal and
familial difficulties on which she had sought the assistance of Mr Yaw Shin
Leong. It would therefore seem that her standing to seek a mandatory order
and declaratory relief was based on the Karaha Bodas test. It is presently
unnecessary, partly as the Attorney-General did not raise the issue of
standing at the time and partly because the factual circumstances have since
changed, to answer the question whether the Appellant had fulfilled the
Karaha Bodas test on 3 April 2012 when leave was granted to her to make
her application under O 53 for a prerogative order. We would confine
ourselves to the observation that we entertain considerable doubt as to
whether there was indeed a violation of a personal right when the Prime
Minister had earlier clearly expressed an intention to call a by-election
along with an assurance that all relevant circumstances would be taken into
consideration. The position would have been quite different if the Prime
Minister had categorically stated that he would not be calling for election to
fill the vacancy for Hougang SMC.
38 After the by-election in Hougang SMC was held on 26 May 2012, the
facts underpinning the Appellants application were rendered moot. As
such, when Summons No 2639 of 2012 was filed, the Appellant could only
assert a public right arising under Art 49, rendering her no different from
any other citizen interested in the proper construction of Art 49. Yet as
explained above at [33], in order to seek declaratory relief for a public right,
something more than just being a member of the general body of citizens,
to whom the Prime Ministers duties under Art 49 are collectively owed,
would be required: the Appellant must show proof of special damage.
[2013] 4SLR
19
Special damage
39 There is no categorical answer as to what constitutes special
damage. Itzhak Zamir, in The Declaratory Judgment (Sweet & Maxwell,
1986 Reprint, originally published: Stevens, 1962) at pp 270271, offers a
contemporaneous snapshot of the English position prior to the landmark
decision of Gouriet:
The courts have not endeavoured to answer this question exhaustively.
They have usually decided the question, when it arose, not on any general
principle but on the particular circumstances of each case. The only safe
generalization which the cases allow is, it is submitted, that any slight
variation of the damage sustained by the plaintiff from the damage suffered
by the other members of the public may be, but does not necessarily have to
be, regarded as special damage.
40 Peter Cane, in The Function of Standing Rules in Administrative

Law (1980) PL 303 at 313314 offers the following retrospective
elucidation in light of the legislative amendments outlined above at [17]:
Identification of the public requires identification of a public interest which
has been adversely affected by the impugned administrative act; those who
share that interest are the public. This interest may be just that an ultra vires
act has been performed which could potentially injure the pecuniary
interests, for example, of any member of the public, as in the case of much
delegated legislation; or it may be some pecuniary or other interest which has
been actually damaged, as, for example, in the case of an ultra vires decision
by a local authority to finance some scheme of benevolence by a rate increase.
Special damage is either damage to the interest common to all members of the
public but quantitatively greater than that suffered by other members of the
public, or damage qualitatively different from that suffered by the public, that
is, damage to some interest not shared by the public generally. Thus to say that
an applicant has been especially damaged is to say that some interest of his,
though not such as the law will recognize as founding a claim for damages,
has been adversely affected in such a way as deserves recognition by the
granting of a supervisory remedy. [emphasis added]
41 In Australia, the special damage criterion has been modified in

Australia Conservation Foundation Inc v Commonwealth (1980)
146 CLR 493 (ACF) to a requirement of special interest. ACF involved a
challenge by an environmental interest group to the proposed
establishment of a tourist resort in Queensland. The High Court of
Australia held that the applicant did not have standing under either limb of
the Boyce test. Gibbs J took the opportunity to expound upon the content
and meaning of special damage at 527:
Although the general rule is clear, the formulation of the exceptions to it
which Buckley J made in [Boyce] is not altogether satisfactory. Indeed the
words which he used are apt to be misleading. His references to special
damage cannot be limited to actual pecuniary loss, and the words peculiar to
himself do not mean that the plaintiff, and no one else, must have suffered
20
[2013] 4SLR
damage. However, the expression special damage peculiar to himself in my

opinion should be regarded as equivalent in meaning to having a special
interest in the subject matter of the action. The words appear to have been
understood in this sense by Viscount Maugham in [Moscrop] at 345, and by
Lord Wilberforce and Lord Edmund-Davies in [Gouriet] at 482, 514.
42 Further down, at 530531, Gibbs J provided the following analysis of

special interest:
I would not deny that a person might have a special interest in the
preservation of a particular environment. However, an interest, for present
purposes, does not mean a mere intellectual or emotional concern. A person
is not interested within the meaning of the rule, unless he is likely to gain
some advantage, other than the satisfaction of righting a wrong, upholding a
principle or winning a contest, if his action succeeds or to suffer some
disadvantage, other than a sense of grievance or a debt for costs, if his action
fails. A belief, however strongly felt, that the law generally, or a particular law,
should be observed, or that conduct of a particular kind should be prevented,
does not suffice to give its possessor locus standi. If that were not so, the rule
requiring special interest would be meaningless. Any plaintiff who felt
strongly enough to bring an action could maintain it.
43 At this juncture, we pause to observe that we see merit in, and do

agree with, the clarifications given by Gibbs J (quoted above) in relation to
the expressions peculiar to himself and special damage used by
Buckley J in the second exception in Boyce ([29] supra). In the present case,
it is abundantly clear that the special damage or special interest
exception has not been made out as the Appellant is not able to point to any
damage which she has suffered or any special interest of hers which has
been affected. Putting it plainly, her interest is no more than a general
desire to have Art 49 interpreted by the court. We therefore do not see any
need, and indeed we doubt the court could really offer more specific
guidelines on the operation of an exception which must of necessity be factsensitive and which the court will have to assess on the facts of each case. It
suffices to say that differences in nomenclature aside, the pre-1977 English
and present Australian positions on special damage or special interest
are aligned in that the applicant who asserts a public right must
demonstrate that his personal interests are directly and practically affected
over and above the general class of persons who hold that right, but need
not go so far as to show that he is the only person affected (see [33] above).
Our conclusion on standing
44 It follows from the above analysis that the appeal is dismissed on the
ground of the Appellants lack of standing in pursuing the matter after the
election to fill the vacancy at Hougang SMC was carried out on
26 May 2012.
[2013] 4SLR
21
Our analysis of the procedural issue

45 The foregoing decision should suffice to dispose of this appeal.
However, as we are of the opinion that the Judges views on the procedural
and substantive issues need clarification, we feel constrained to examine
them. In coming to his decision on the procedural issue, we note that the
Judge speculated (at [34] of the Judgment) that the 2011 amendments to the
Rules of Court were precipitated by Chan Sek Keong CJs decision in Yong
Vui Kong v AG [2011] 2 SLR 1189 (Yong Vui Kong):
The close proximity in time between Yong Vui Kong and the amendment to
Order 53 in 2011 may suggest that the amendments filled the lacunae
observed in Yong Vui Kong. Had the application in Yong Vui Kong been
made today, the court now has the power, having granted the Prohibiting
orders to also append the included declarations.
He seemed to think that the bright line between prerogative orders and any
additional declaratory relief sought is not confined only to the procedural
requirement of seeking leave but extends into the substantive remedies
which can be granted by the court so much so that if the application for a
prerogative order fails on the merits, for whatever reasons, the additional
application for declaratory relief cannot be granted.
46 However, we have also noted this interesting passage where the Judge
dealt with the relationship between O 53 and O 15 r 16 (at [36] of the
Judgment):
However, an applicant is at liberty to seek standalone declarations under
O 15 r 16. It is settled law that declarations under O 15 r 16 do not require
leave of court although they are, however, still subject to the requirements set
out in Karaha Bodas ([27] supra). Under the current Rules of Court, if an
applicant wishes to apply for (a) prerogative orders under O 53 r 1; and
separately, (b) standalone declarations under O 15 r 16 concurrently, he may
do so. In the event that he fails to obtain leave for the prerogative orders, he
may continue with his separate standalone declaration application. On the
other hand, in the event that he obtains leave for the prerogative orders, he
may proceed with his separate standalone declaration application. He may, in
such event, apply to consolidate both proceedings under O 4 r 1 Rules of
Court.
As in this case the Appellant had reserved her rights to apply under O 15
r 16, the Judge held (at [37][39] of the Judgment) that he could still grant a
declaration under O 15 r 16 even though in his view O 53 did not
countenance this.
47 Therefore the issue which we must address is whether the Judge is
correct in holding that under O 53 declaratory relief may not be granted
except as an addition to a prerogative order. As the Judge rightly observed,
O 53 r 1 only requires leave to be obtained in relation to the principal
application, which is defined to mean the application for prerogative
22
[2013] 4SLR
orders. In contrast, O 53 r 7 pertains to the substantive power of the court

to grant relief, and refers to the court making a Mandatory Order,
Prohibiting Order, Quashing Order, or declaration [emphasis added]. The
other rules in O 53 relate to procedures as to how an applicant should
progress with his application after leave is obtained. It is abundantly clear
that O 53 r 1 and O 53 r 7 regulate different stages of the judicial review
process. The Judge appears to have telescoped the two provisions and
inferred that, since an application for declaratory relief can only be tacked
on to an application for prerogative orders (though only the application for
prerogative orders requires leave), the court cannot grant declaratory relief
alone unless it also grants a prerogative order. This is evident from [33] of
his Judgment:
The point of contention between both counsel arises from O 53 r 7(1), which
when read in isolation, may suggest that a declaration has now been elevated
to the same level as a prerogative order under O 53. However, in the light of
Yong Vui Kong ([29] supra), the word or that comes before the word
declaration in O 53 r 7(1) is not disjunctive. The phrase or declaration here
relates back to O 53 r 1, which states that it may be included in the principal
application. This implies that a declaration is contingent upon the
prerogative order and cannot be granted independent of the principal
application under O 53. I therefore reject the submission of the counsel for
the applicant that O 53 r 1 read with O 53 r 7 has the combined effect of
empowering the court to grant standalone declarations independent of the
grant of the prerogative order. In the full context of O 53, the phrase or
declaration means a declaration that is appended to and contingent upon a
prerogative order. [emphasis added]
48 With respect to the Judge, we are impelled to hold that his approach
to the two rules is erroneous. It is a non-sequitur to hold that the High
Court is barred from granting a standalone declaration simply because the
applicant is barred from seeking a standalone declaration under O 53 r 1.
We do not see how that follows, particularly as such an interpretation
effectively implies a condition subsequent out of a condition precedent. In
this regard, we would also point out that O 53 r 1(1) expressly states that the
term principal application is used in relation to this paragraph, ie, O 53
r 1(1). No equivalent signifier of differentiation between prerogative orders
and declaratory relief is found in O 53 r 7(1).
49 Further, the Judges construction of the word or in O 53 r 7(1) as
being not disjunctive, would appear to suggest that it must be read as
conjunctive. However, the ordinary sense of the word or is not
conjunctive. This is not only grammatical convention but also wellrecognised in the law. For example, in Re Diplock [1941] 1 Ch 253
at 260261, Sir Wilfrid Greene MR held that the word or was prima facie,
and in the absence of some restraining context, to be read as disjunctive.
There are also authorities which clearly hold that or could in particular
contexts be construed as and/or. Here we would refer to Federal Steam
[2013] 4SLR
23
Navigation Co Ltd v Department of Trade and Industry [1974] 1 WLR 505

where Lord Wilberforce analysed the issue as follows (at 522BE):
If all these meanings are rejected, there remains the course of treating or as
expressing a non-exclusionary alternative in modern logic symbolised by
v. In lawyers terms this may be described as the course of substituting and
for or, or, rather the course of redrafting the phrase so as to read: the owner
and the master shall each be guilty, or, if the phrase of convenience were
permitted the owner and/or the master. To substitute and for or is a
strong and exceptional interference with a legislative text, and in a penal
statute one must be even more convinced of its necessity. It is surgery rather
than therapeutics. But there are sound precedents for so doing: my noble and
learned friend, Lord Morris of Borth-y-Gest, has mentioned some of the best
known; they are sufficient illustrations and I need not re-state them. I would
add, however, one United States case, a civil case, on an Act concerning
seamen of 1915. This contained the words: Any failure of the master shall
render the master or vessel or the owner of the vessel liable in damages. A
District Court in Washington D.C. read or as and saying that there could
not have been any purpose or intention on the part of Congress to compel the
seamen to elect as to which to pursue and thereby exempt the others from
liability The Blakeley, 234 Fed. 959. Although this was a civil, not a criminal
case, I find the conclusion and the reasoning reassuring.
50 In Secretary of State for the Home Department v Rehman [2003]

1 AC 153, the point of interpretation before the House of Lords concerned
a provision under the Immigration Act 1971 (c 77) (UK) which provided
for the deportation of a person where his deportation is conducive to the
public good as being in the interests of national security or of the relations
between the United Kingdom and any other country or for other reasons of
a political nature [emphasis added in bold]. Lord Hoffmann analysed
(at [59]) the provision as such:
it is necessary only to decide that the Home Secretarys reasons fall into
one or more of the specified categories. If his reasons could be said to relate to
national security or foreign relations or possibly both, it is unnecessary to
allocate them to one class or the other. The categories do not create
separate classes of reasons but a single composite class. [emphasis added]
It is evident from Lord Hoffmanns exposition that his Lordship regarded

the word or as operating as a non-exclusionary alternative most
accurately expressed as and/or.
51 Returning to the present appeal, we see no justification for construing
or in O 53 r 7(1) in a manner which ignores its core disjunctive function
when its ordinary meaning points to the other way. Such a reading would
also emasculate much of the provisions usefulness and blunt the impact of
the 2011 amendments since prudent applicants would still have to maintain
a separate action under O 15 r 16 to insure against the all-or-nothing
operation of O 53. This is acknowledged in the Judgment (at [46]) with the
suggested solution being the consolidation of the two proceedings. In effect,
24
[2013] 4SLR
this is an understanding which by implication treats the 2011 amendments

as no more than a knee-jerk response to Yong Vui Kong (see [45] above). It
would also leave very much intact many of the valid concerns highlighted
by Woo Bih Li J in Yip Kok Seng v Traditional Chinese Medicine
Practitioners Board [2010] 4 SLR 990, at [17]:
Our O 53 derives from the pre-1977 O 53 in the English equivalent (English
O 53) of the Rules of the Supreme Court 1965, with the distinction that it is
(since 1994) begun by ex parte originating summons and not originating
motion. The procedure is both uncertain and cumbersome. It is not clear
whether certain processes applicable to ordinary originating summons, such
as discovery, are applicable in addition to those prescribed under O 53. An
applicant seeking both prerogative and ordinary remedies is obliged to
proceed via two separate originating processes, and again it is not clear
whether subsequent consolidation is possible. From the perspective of a
public body, it enjoys the procedural protection in O 53, such as the
requirement for leave and the limitation of time, in respect of actions for the
prerogative remedies, but not in actions for other remedies.
52 The foregoing only addressed the interpretation of the word or in

O 53 r 7(1). An equally important aspect to consider is the object of this
rule, an aspect which was not addressed by the Judge (presumably because
it was not a point raised by the parties). To our mind it is clearly a
facilitative provision to enable the court which hears an application under
O 53 to grant further relief to the applicant, relief which the applicant
would be entitled to obtain if he were to commence a separate action. The
purpose of the rule is not to circumscribe the power of the court to grant
declaratory relief in particular. It must be borne in mind that the condition
precedent to the grant of such further relief is where the court has made a
Mandatory Order, Prohibiting Order, Quashing Order or declaration. The
aim of this rule is obviously to make the court process friendlier to litigants
so that an applicant who succeeds in obtaining a prerogative order or
declaratory relief need not have to institute further proceedings in order to
obtain the further relief which he would be entitled to.
Our conclusion on the procedural issue
53 In the premises, it is our judgment that the proper construction of
O 53 should be such that an applicant who wishes to obtain a prerogative
order and a declaration under this order must, first, obtain leave to make an
application for a prerogative order (O 53 r 1(1)(b)). In the same application
he may also apply for declaratory relief. Once leave is granted, and upon
hearing the parties on the substantive merits, the court may grant (a) any
prerogative order and a declaration; or (b) only a prerogative order without
any declaration; or (c) only the declaration without any prerogative order.
We should further clarify that if in an application more than one
prerogative order is prayed for then the court may, of course, grant more
than one such prerogative order. It is understandable why O 53 does not
[2013] 4SLR
25
permit the application for only declaratory relief because it is essentially an

order relating to the grant of prerogative orders. Indeed, if a party only
wishes to apply for freestanding declaratory relief he could have done so
under O 15 with less hassle as no leave of court is required for him to
proceed with his application. Of course, even though no leave is required
for an application for declaratory relief, he must still show that he has a
genuine basis to ask for the relief as the court is not obliged to answer
essentially academic questions. The 2011 amendments to O 53 r 1 are
clearly facilitative, to enable the court to also grant declaratory relief where
an application is made for a prerogative order. The leave process serves to
sieve out hopeless or frivolous public law claims. Once leave is obtained and
the matter goes on to the merits stage, the court must obviously consider
the substantive merits of the claim and upon that being established,
consider whether it is an appropriate case to issue a prerogative order (it
could be more than one, depending on the prayers). If, for whatever
reasons, the court thinks that a prerogative order is not appropriate, it could
then consider whether a declaratory order could be made. We would hasten
to add that there is nothing to preclude the court, if it should think fit, from
granting a prerogative order as well as declaratory relief, always bearing in
mind that the court should not be asked to do anything in vain.
The Judges holding on the substantive issue
54 The Judge underpinned his reading of Art 49 of the Constitution with
three modes of analysis textual, contextual, and historical and was
persuaded that the expression shall be filled by election in the Article
referred to a process and not an event. In the premises, he concluded at
[115] of his Judgment that [t]here is no requirement in the Constitution to
call elections to fill elected Member vacancies. There being no such
requirement, there arises no prescribed time within which such elections
must be called.
55 The Judges textual analysis centred on a comparison between Art 49
and Art 66, and the latter provision reads:
General elections
66. There shall be a general election at such time, within 3 months after every
dissolution of Parliament, as the President shall, by Proclamation in the
Gazette, appoint.
He noted that Art 49(1) does not state that the vacancy shall be filled by an
election. Instead, it merely states that the vacancy shall be filled by
election, a process (at [58] of the Judgment). In contrast, Art 66 refers to a
general election which is an event. In his view, the omission of the word
an before election in Art 49 was significant.
56 Moving next to consider the context, the Judge having noted that
Art 49 appears in Pt VI of the Constitution, stated (at [62] of the Judgment)
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[2013] 4SLR
that there is an orderly and logical structure inherent within the

constitution and (at [79] of the Judgment) that Pt VI methodically
prescribes different rules for different types of Members, and the similarly
by [sic] different processes for filling each type of Member vacancies.
Extrapolating from this overarching structure, the Judge concluded (at [80]
of the Judgment) that the purpose of Art 49 must be to clarify that vacant
seats for elected Members are to be filled by election and not by some other
mode such as appointment or being declared elected.
57 Finally the Judge devoted a substantial part of his Judgment in
examining the historical development of Art 49, tracing it back to the
Singapore Colony Order in Council 1946 (Statutory Rules and Orders 1946
No 464). The crucial insight gleaned from this review, however, centres on
s 51 of the Singapore Colony Order in Council 1955 (SI 1955 No 187) (the
1955 Order), which was the original source of Art 49(1) of the current
Constitution (at [96] of the Judgment). Section 51(1) of the 1955 Order
provided that where the seat of a Nominated Member of the Legislative
Assembly had become vacant, it shall be filled by appointment by the
Governor, whilst s 51(2) provides that where the seat of an elected
Member had become vacant it shall be filled by election. As the historical
material is extensive, we thought that this merited close attention.
Historical development of Article 49
58 Before Singapore joined Malaysia as a constituent state, an agreement
was concluded between the United Kingdom of Great Britain and Northern
Ireland, the Federation of Malaya, North Borneo, Sarawak and Singapore in
London on 9 July 1963 (see Agreement concluded between the United
Kingdom of Great Britain and Northern Ireland, the Federation of Malaya,
North Borneo, Sarawak and Singapore (UK Cmnd 2094, 1963), hereinafter
referred to as the Blue Book, which contained the Agreement Relating To
Malaysia (the Malaysia Agreement)). In Annex D to the Malaysia
Agreement the proposed Constitution of the State of Singapore (as a part of
Malaysia) was set out. In Art 33 therein it was provided that:
Whenever the seat of a Member has become vacant for any reason other than
a dissolution, the vacancy shall within three months from the date on which
it is established that there is a vacancy be filled by election in the manner
provided by or under any law for the time being in force in the State.
It would be noted that in this Article, contrary to what was set out in the
1955 Order, a time-limit of three months was prescribed for the holding of
an election to fill a casual vacancy (hereinafter in this judgment referred to
as the time-limit clause).
59 On 29 July 1963, in introducing a Motion in the Singapore Legislative
Assembly, the then Prime Minister Mr Lee Kuan Yew (Prime Minister
Lee) informed the House that he would be seeking some drafting as well as
substantive amendments to the proposed Singapore State Constitution as
[2013] 4SLR
27
set out in the 1963 White Paper Malaysia. Agreement Concluded Between
the United Kingdom of Great Britain and Northern Ireland, the Federation
of Malaya, North Borneo, Sarawak and Singapore (Cmd 22 of 1963) (the
White Paper). One of the substantive amendments sought was in relation
to the removal of the time-limit clause in Art 33. This proposal for a change,
adopted by the Singapore Legislative Assembly, was forwarded to the
United Kingdom government with the expectation that it would be
reflected in the Order-in-Council promulgating the Singapore State
Constitution. However, that was not to be and when Singapore became a
constituent State of Malaysia in September 1963, Art 33 of the Singapore
State Constitution as promulgated in the Third Schedule to the Sabah,
Sarawak and Singapore (State Constitutions) Order in Council 1963
(SI 1963 No 1493), remained in the terms as set out in the Blue Book
(see [58] above). In other words, the time-limit clause was not removed as
requested by the Singapore Legislative Assembly.
60 Following the separation of Singapore from Malaysia, our Parliament
passed the Constitution (Amendment) Act 1965 (Act 8 of 1965) which
deleted the time-limit clause from Art 33. The significance of the events in
1963 touching on Art 33 (the version set out in the Blue Book, the version
adopted by the Singapore Legislative Assembly as reflected in the White
Paper and the eventual version in the Singapore State Constitution) as well
as the subsequent removal of the time-frame clause in 1965 will be
examined in some detail in a moment. We specifically, at the conclusion of
the oral hearing before us, requested parties to make further submission on
this very point. After 1965, what was Art 33 remained substantively
unchanged following its renumbering in 1980 to Art 49 and subsequent
amendments to the same Article as a result of the introduction of nonconstituency MPs.
Debates in 1963
61 The Appellant referred to the debates in the Legislative Assembly in
July 1963 to show that a casual vacancy must be filled as no Legislative
Assemblyman had even raised a suggestion to the contrary. She highlighted
that the focus of the debate was on the Prime Ministers discretion as to the
time-frame within which a by-election to fill a casual vacancy must be
called, which the opposition bench asserted had been abused in relation to
the vacancy in the Sembawang constituency following the death of
Mr Ahmad Ibrahim on 21 August 1962 (the Sembawang vacancy).
62 The Attorney-General explains that in July 1963 Singapore sought to
amend Art 33 (as set out in the Blue Book), by deleting the time-limit clause
(as proposed in the White Paper), with a view to bringing it in line with
Singapores then-existing law relating to by-elections. He argues that the
state of the existing law could be gleaned from the statements of the
opposition bench during the debates. In particular, Mr A P Rajah voiced
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[2013] 4SLR
concerns over how much time [the Government] waste thinking over
whether they should have a by-election in Sembawang, whether it should be
five days from today, or whether it should be six days from tomorrow
[emphasis added] (see Singapore Parliamentary Debates, Official Report
(31 July 1963) vol 21 at col 474). Inche Ahmad Jabri Bin Mohammar Akib
also opposed the version of Art 33 proposed in the White Paper on the basis
that the absence of a particular clause which binds the Government will
leave any future vacancies to the whims and fancies of the Party in power
(see Singapore Parliamentary Debates, Official Report (1 August 1963)
vol 21 at col 689).
63 The Attorney-General also avers that the 1963 debates must be
viewed in the context of the Sembawang vacancy. Prime Minister Lee had
informed the Assembly on 5 April 1963, some seven months after the
vacancy, that a by-election would be held once the electoral registers had
been updated. A further statement was also made on 11 June 1963 to clarify
that the Statistics Department was working at full capacity to complete the
registers by the end of June or the beginning of July. The Prime Minister
went on to say that the by-election would be held soon after (see Singapore
Parliamentary Debates, Official Report (11 June 1963) vol 20 at col 767).
However, the Sembawang by-election was never held instead, the
Legislative Assembly was dissolved on 3 September 1963 and a general
election was called. The Attorney-General argues that this indicates the
absence of a constitutional duty for casual vacancies to be filled.
64 The Attorney-General also singles out comments made by two
opposition Members some months before the debates on the White Paper
to support his conclusion. On 9 April 1963, Tun Lim Yew Hock
commented that the date of the Sembawang by-election could be June, it
could be July, it could not even be held at all. It is left to the PAP
Government (see Singapore Parliamentary Debates, Official Report
(9 April 1963) vol 20 at col 350). Dr Lee Siew Choh echoed this and
suggested that if the Sembawang by-election should be further delayed
we would have to consider seriously bringing in amendments to the
Constitution to make good the lacuna in the law which has allowed the PAP
to make a mockery of parliamentary democracy (see Singapore
Parliamentary Debates, Official Report (9 April 1963) vol 20 at col 451).
65 However, the Appellant counter-argues that the election for the
Sembawang vacancy had not been held for purely logistical reasons, as
evidenced by the passage of the Singapore Legislative Assembly Elections
(Temporary Provisions) Bill (Bill 198 of 1963) which provided for an
extension of time for the revision of the electoral registers for 1962. As such,
no principle of unfettered discretion can be extrapolated from the fact that a
by-election had not been called for the Sembawang constituency.
[2013] 4SLR
29
Analysis of the historical development

66 It is clear that counsel for both the Appellant and the AttorneyGeneral have based much of their arguments on the subtext of statements
made during the 1963 debates. However, subtext, in its inherent nature, is
just as capable of amplifying rather than clarifying any latent ambiguity.
The statements have to be carefully scrutinised. For example,
Mr A P Rajahs aside that the Government had agonised over whether they
should have a by-election in Sembawang could indicate an assumption
that the Prime Minister had discretion over whether to call a by-election, or
it could be a reference to whether a by-election should be called in advance
of an upcoming general election. Equally, Inche Ahmad Jabri Bin
Mohammar Akibs statement that there was no particular clause which
binds the Government could relate to the timing of elections or to the
calling of elections. One should not read too much into such statements,
particularly if it is accepted that the phrase shall be filled by election is
inherently pregnant with ambiguity. That being the case, it is
understandable why the Legislative Assemblymen would have had different
interpretations of what the phrase encompassed. With this in mind, the
only common thread which can be gathered from the comments of the
opposition bench is that the then existing law attributed too much
discretion to the Prime Minister who could, in their mind, unreasonably
delay the calling of a by-election.
67 As for the ruling party, it is pertinent to note that neither Prime
Minister Lee nor any member of his Party denied that there was a
constitutional obligation to call a by-election to fill a casual vacancy. The
Minister for Health and Law, Mr Byrne, only observed that the present
Singapore (Constitution) Order in Council does not prescribe any period
within which the vacancy must be filled (see Singapore Parliamentary
Debates, Official Report (31 July 1963) vol 21 at col 556). Prime Minister
Lee gave the example of Hugh Gaitskell, a leader of the Labour Party in the
UK, whose vacated seat was not filled until nine months after his demise (in
fact only five months, as Mr Gaitskell died on 18 January 1963 and the byelection was held on 20 June 1963) (see Singapore Parliamentary Debates,
Official Report (31 July 1963) vol 21 at col 700). Evidently, the entire focus
of the debate in the Assembly was on the time-frame within which byelections to fill casual vacancies should be called rather than the need to fill
such vacancies. An opinion on whether such vacancies had to be filled was
not volunteered by Prime Minister Lee. Again, one should not read this as
implying that he had taken it for granted that there was a duty to fill
vacancies, as he could just as easily have taken the opposite position for
granted. However, given that the debate had centered on the timing of byelections, it would seem odd that Prime Minister Lee did not offer the short
answer that he had a discretion as to whether to call a by-election at all, if
that had really been his intention or belief at the time.
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[2013] 4SLR
68 For example, Prime Minister Lee could have responded as he did in

1983, when the death of Mr Hon Sui Sen left the seat for Havelock
constituency vacant. In response to Mr J B Jeyaretnams questions
as to when the seat would be filled, the Prime Minister answered
(see Singapore Parliamentary Debates, Official Report (20 December 1983)
vol 43 at cols 190192):
Mr J.B. Jeyaretnam (Anson): Supplementary question, Sir. Would the Prime
Minister say what was the reason for the amendment to the Constitution way
back in 1965, taking away the requirement for the vacancy to be filled within
three months?
The Prime Minister: Mr Deputy Speaker, Sir, 1965 did not see such an
amendment. He goes by what he reads. The Member for Anson, as a member
of the learned profession, should not go by what he reads in the press. The
legislation on elections was governed by laws which were promulgated in
1959, and I remember distinctly that when the then Member for Sembawang
died in August of 1962, we did not have to hold an election because there was
an evenly divided House of 25 Members on each side until we held the
General Elections in September 1963. When we became part of Malaysia,
Malaysian laws then applied to Singapore. When we were separated from
Malaysia, we re-adopted the 1959 practice which does not require us to hold
an election or bye-election within three months. There are variations in as
many countries as there are running the first-past-the-post system.
Mr Jeyaretnam: Would the Prime Minister explain why it was necessary to

go back - if that was the practice before the Malaysian Constitution came into
effect -because the Malaysian Constitution contained a requirement that the
vacancy be filled within three months?
The Prime Minister: Mr Deputy Speaker, Sir, I find it tedious and tiresome to
have to explain the simple elementary rules of parliamentary practice. There
is no requirement. There never was a requirement to hold a bye-election, and
we decided to go back to the practice of 1959 because of my experience. As I
have explained, the House was evenly divided, 25 on each side, and we
governed with firmness and fairness from August 1962 to September 1963,
for 15 months, and we won the General Elections. I can assure the Member
for Anson that we will govern with firmness and fairness between now and a
date before the end of 1985. 1 have already given him the answer when the
General Elections will be held, how long it will be, and if there is any further
information which will be helpful to him, I will contrive to ensure that he is
duly informed and given as much notice as all other Opposition parties.
[emphasis added]
69 Given Prime Minister Lees avowal that there never was a

requirement to hold a bye-election, it ought to be considered why this was
not asserted in 1963 in response to the comments from the opposition
bench. At the same time, we must be careful not to treat Prime Minister
Lees extemporaneous statements during a spirited Parliamentary debate as
[2013] 4SLR
31
definitive pronouncements. When viewed in context, one must also take

into account that Prime Minister Lees views were couched in more forceful
terms than those which might be employed in a dispassionate judicial
setting.
70 In the period of about 12 months between the death of Mr Ahmad
Ibrahim and the dissolution of Parliament on 3 September 1963, Prime
Minister Lee never suggested that he did not have to call a by-election.
Instead, there were repeated assurances that the by-election would be called
accompanied by an explanation that the electoral registers had to be
updated. In 1965, following the separation of Singapore from Malaysia,
during the Second Reading of the Constitution (Amendment) Bill
(Bill No 44 of 1965) which proposed the removal of the three-month timelimit clause from Art 33, Prime Minister Lee only stated that for reasons
which we find valid and valuable as a result of our own experience of
elections and of government in Singapore, we have decided that this
limitation should no longer apply (see Singapore Parliamentary Debates,
Official Report (22 December 1965) vol 24 at col 432).
71 In retrospect, the experience being referred to was likely to have
been that of the Sembawang vacancy, suggesting that the intention of
Parliament in removing the time-limit clause was to leave the filling of
casual vacancies to the discretion of the Prime Minister. However, we find it
difficult to see how the Sembawang vacancy can be relied upon as a
historical precedent in support of the proposition that casual vacancies
need not be filled at all, when there were no contemporaneous express
statements to that effect and the explanation offered for the delay was that
the register of voters was being updated. There is a distinction between
having a discretion in deciding when to call for an election to fill a casual
vacancy and an entitlement not to fill such a vacancy at all. Vacancies can
be cured prescriptively by election or ontologically by the dissolution of
Parliament. The non-existence of Parliament would also, ipso facto, negate
any vacancy. Thus the failure to call a Sembawang by-election in 1962/1963
cannot be equated to an exercise of the Prime Ministers discretion not to
fill a casual vacancy instead, it was simply an example of the discretion
vested in the Prime Minister to call for either a by-election or a general
election, and in making that determination he was entitled to take into
account all relevant circumstances. The 1963 debates reveal, at the highest,
that the Sembawang vacancy was an instance where the executive had
tested the limits of its discretion as to when it had to call a by-election.
There is no basis to hold that historical moment as evidence that there had
never been a requirement to call for by-elections in response to casual
vacancies.
72 What the preceding survey of legislative interventions demonstrates
in relation to the phrase shall be filled by election is that there was no
consensus as to its meaning. In 1963, it was a matter of political contention
32
[2013] 4SLR
without any overt assertion of a total unfettered discretion. In 1965, it was

understood through the prism of previous experience without
acknowledgement that the law was unsettled at the time. From 1983, it was
categorically taken to mean that there was no requirement to call byelections to fill vacancies without any explanation as to why by-elections
were called as a matter of course up till then (except for the Sembawang
vacancy). It is true that the time-limit clause in Art 33 was regarded by
those who took part in the debate in the Legislative Assembly as essentially
political and this was neatly encapsulated in the following comment of
Prime Minister Lee during the 1963 debates on the White Paper
(see Singapore Parliamentary Debates, Official Report (31 July 1963) vol 21
at cols 700701):
The Prime Minister: Make it another election issue. If they win, change the
Constitution. This is a State Constitution. It can be changed at the behest of
the State Assembly. Even if we drafted it the way the Member for Farrer Park
wanted, there would be nothing to prevent us from amending it the way we
want, if and when we win the next election. They can do it if and when they
win. But perhaps they consider the possibility of winning is such a remote
eventuality that they have no confidence in themselves and that they are
thinking of conscribing a P.A.P. Government.
The removal of the time-limit clause in 1965 only rendered the question as
to when a by-election should be called to fill a vacancy more uncertain, and
in that sense making the issue more political. However, the legal question
still remains.
Our analysis of the substantive issue
73 As would be seen from [55] above, the Judges conclusion on the
substantive issue rests essentially on the omission of just the word an
from Art 49. In his view, the reference in Art 49 to election, without the
word an before it meant that what is there referred to is a process and that
the word shall in the phrase shall be filled by election relates to the
process and had nothing to do with the question as to the period within
which the vacancy of a seat ought to be filled.
74 With respect, we fail to see how the presence or absence of the word
an could really help to resolve the question, which can be fully framed as:
whether the Prime Minister is accorded a full and unfettered discretion
whether or not to advise the President to issue a writ of election to fill a
casual vacancy of an elected Member and whether he could delay the
tendering of such advice to the President indefinitely or declare that he is
not going to fill the vacancy although Parliament is not being dissolved in
the near future (for convenience this question is hereinafter referred to as
the Discretionary Question).
75 Even reading the word election in the context as prescribing only a
process, we fail to see how that necessarily leads to the conclusion that the
[2013] 4SLR
33
Prime Minister has thereby an unfettered discretion as to whether he will

tender advice to the President to issue a writ of election. Indeed, whether we
construe the word election as a process or an event, the Discretionary
Question still remains. It seems to us that the omission of the word an in
the phrase shall be filled by election (the phrase) is neither here nor
there.
76 The phrase is plainly capable of being read in a double-barrelled
sense, such that the imperative attaches to both the filling of the vacant seat
as well as the mode of doing so. The Judge did not appear to have
considered this possibility because he started his textual analysis (at [58] of
the Judgment) by a simple comparison between Art 49 and Art 66 which
shifts the focus of the controversy to the absence of the definite article an
in the phrase shall be filled by election. This resulted in an undue
emphasis on the article which, had it been included, would not have
completely resolved the Discretionary Question. We do not see the phrase
shall be filled by an election as being any clearer than shall be filled by
election, because the operative ambiguity is whether the mandating effect
of the word shall also affects the filling of the vacancy. In our opinion, the
key to the Discretionary Question lies with the word shall rather than
election.
77 We would point out that the Judges textual emphasis on the latter in
fact substantially modifies the meaning of Art 49. His construction would
amount to reading the phrase to mean that the vacancy may be filled and if
so shall be by election (or an election). The implication of a less definitive
and directory rather than mandatory verb where the word shall is used,
and where its ordinary sense is not open to question, is simply
unwarranted.
78 As outlined at [66][72] above, the historical development of what is
now Art 49 which the Judge had carefully narrated, while informative and
interesting, does not in fact shed much light as to how the phrase should be
construed. It would be recalled from [58] above that the only previous
version of Art 49 which set out a time-limit within which a vacancy was
required to be filled was Art 33 of the Singapore State Constitution when we
were a part of Malaysia. There it was provided that the vacancy shall within
three months from the date on which it was established that there is a
vacancy be filled by election. It is interesting to note that in Art 33 the
time-limit clause followed immediately after the word shall. It is difficult
to appreciate how the removal of the time-limit clause should alter the
sense of the phrase. The removal of the time-limit clause would only mean
that no time-frame is prescribed for the holding of an election to fill a casual
vacancy. The specification as to how or when a casual vacancy is to be filled
cannot answer the question as to the imperative to fill the vacancy itself.
The absence of the time-limit clause cannot lead to the conclusion that the
Prime Minister is thereby completely free to do as he pleases, even to the
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[2013] 4SLR
extent of delaying indefinitely the calling of a by-election or even declaring

that he will not fill the casual vacancy. We agree however that the absence of
the time-limit clause means that there is no pre-determined time frame and
the issue of timing has to be resolved by applying the general law relating to
statutory construction.
79 At this juncture, it is vital to remind ourselves that the form of
government of the Republic of Singapore as reflected in the Constitution is
the Westminster model of government, with the party commanding the
majority support in Parliament having the mandate to form the
government. The authority of the government emanates from the people.
Each Member represents the people of the constituency who voted him into
Parliament. The voters of a constituency are entitled to have a Member
representing and speaking for them in Parliament. The Member is not just
the mouthpiece but the voice of the people of the constituency. Griffith &
Ryle on Parliament: Functions, Practice and Procedures (Sweet & Maxwell,
2nd Ed, 2003) at para 2-073 offers a succinct summary:
The functions of Members are of two kinds and flow from the working of
representative government. When a voter at a general election, in that hiatus
between Parliaments, puts his cross against the name of a candidate, he is
(most often) consciously performing two functions: seeking to return a
particular person to the House of Commons as a Member for that
constituency, and seeking to return to power as the government of the
country, a group of individuals of the same party as that particular person
When a candidate is elected as a Member of the House of Commons, he
reflects those two functions of the voter. Whatever other part he may play, he
will be a constituency M.P. As such, his job will be to help his constituents as
individuals in their dealings with the departments of State. He must listen to
their grievances and often seek to persuade those in authority to provide
remedies. He should have no regard to the political leanings of his
constituents for he represents those who voted against him or who did not
vote at all as much as those who voted for him.
80 It is also true that Singapore has to an extent modified the

Westminster model. We have introduced the non-constituency MP. We
also have the GRC, where a larger constituency returns more than one MP
for that constituency, a scheme to take into account the multiracial
composition of the electorate. For the GRC where a Member ceases to be a
Member for whatever reasons, s 24(2A) of the Parliamentary Elections Act
(Cap 218, 2011 Rev Ed) (Parliamentary Elections Act) provides that no
writ of election shall be issued to fill the vacancy unless all the Members for
that constituency have vacated their seats. Furthermore, our Constitution
emphasises the political party rather than the individual MPs by providing
that should an MP cease to be a member of the party under which banner
he was elected, he shall on that account also cease to be an MP (see
Art 46(2)(b) of the Constitution). But none of these modifications changes
[2013] 4SLR
35
the basic character of an elected MP who represents the citizens who voted
him into Parliament, particularly in the case of a SMC.
81 In his speech in Parliament on 22 December 1965 introducing the
amendment to remove the time-limit clause from Art 33 after Singapore
separated from Malaysia, Prime Minister Lee said (Singapore Parliamentary
Debates, Official Report (22 December 1965) vol 24 at col 432):
Article 7 revokes a clause which was introduced into the State Constitution of
Singapore when it entered Malaysia. Members in this House will know that
there was no such injunction of holding a by-election within three months in
our previous Constitution. We resisted this particular condition being
imposed upon the State Constitution at the time we entered Malaysia, but our
representations were not accepted because Malaysia insisted on uniformity of
our laws with the other States in the Federation and with the Federal
Constitution itself. Since we are no longer a part of the Federal whole, for
reasons which we find valid and valuable as a result of our own experience of
elections and of government in Singapore, we have decided that this
limitation should no longer apply
82 It would be noted that what Prime Minister Lee said in proposing the
removal of the time-limit clause was that the three-month time limit was
not appropriate for Singapore in the light of our experience. He did not say
that by virtue of this removal of the time-limit clause the Prime Minister
would have an unfettered discretion (irrespective as to the basis thereof) to
postpone indefinitely the holding of an election to fill a casual vacancy.
Neither was that stated by any other MP. What he sought was not to be
bound by the three-month time limit. Having regard to the role of an MP in
the Westminster form of government and on a plain reading of Art 49, it
seems clear to us that the Constitution places a duty upon the Prime
Minister to call a by-election (unless he intends to dissolve Parliament in
the near future) to fill casual vacancies of elected MPs which may arise from
time to time. Of course, in the present context, this will only apply to a SMC
as there is a special provision where a vacancy arises in a GRC
(see [80] above).
83 We acknowledge that neither Art 49, nor s 24 of the Parliamentary
Elections Act, stipulates any time frame within which a casual vacancy must
be filled. In the absence of a specific time limit, what then should be the
time frame within which the Prime Minister must act? That is really the
crux of the issue before us. On this we think s 52 of the Interpretation Act
(Cap 1, 2002 Rev Ed) is germane as it provides:
Where no time is prescribed or allowed within which anything shall be done
that thing shall be done with all convenient speed and as often as the
prescribed occasion arises.
Section 2(1) of the same Act also provides that written law means the
Constitution, all Acts and Ordinances and subsidiary legislation having the
force of law in Singapore, whether enacted before or after 28 December
36
[2013] 4SLR
1965. It would necessarily follow that what is provided in s 52 would apply

to what is required to be done under the Constitution just as under any Act
or subsidiary legislation.
84 While s 52 refers to the test of all convenient speed, it seems to us
that what this provision basically enshrines is the common law concept of a
reasonable time, which must of necessity take into account all the
circumstances relevant to the act to be carried out. The Appellant contends
that only logistical factors should be taken into account, but this would be
tantamount to adopting an exceedingly narrow interpretation of
convenient speed or reasonable time so as to judicially circumscribe the
Prime Ministers decision. The Attorney-General quite rightly questioned
whether, if SARS (which shook Singapore in 2003) should return to trouble
Singapore, the Appellant would seriously contend that the Prime Minister
would not be entitled to take public health concerns into consideration in
determining when to call an election to fill a vacancy. Similarly, in the
current situation, where the country is affected by haze, that should also be
a factor which the Prime Minister would be entitled to take into account. In
the Malaysian case of Tai Choi Yu v Government of Malaysia [1994]
1 MLJ 677 the Malaysian Supreme Court defined (at 683F) the expression
convenient speed in an equivalent Malaysian statutory provision as
reasonable time within which an act has to be done, but always having
regard to the facts and peculiar circumstances of each case. In the earlier
Malaysian case of Ooi Ah Phua v Officer-in-Charge Criminal Investigation,
Kedah/Perlis [1975] 2 MLJ 198, the Malaysian Federal Court agreed with an
even earlier authority, Public Prosecutor v Mah Chuen Lim [1975] 1 MLJ 95
at 96, where it was held that convenient speed would depend on the
circumstances of each particular case and that it was not desirable to lay
down the speed convenient to all cases.
85 As the timing for the holding of an election to fill a vacancy is a
polycentric matter which would involve considerations which go well
beyond mere practicality and the Prime Minister could justifiably take into
account matters relating to policy, including the physical well-being of the
country, it is impossible to lay down the specific considerations or factors
which would have a bearing on the question as to whether the Prime
Minister has acted unreasonably for not, to date, calling a by-election to fill
a vacancy. We are here dealing with a dynamic situation, and no predetermination of the Prime Ministers considerations would be warranted.
However, while we accept that the Prime Minister should be accorded a
measure of latitude in deciding when to call for election to fill a vacancy, it
does not follow from this flexibility that he would, therefore, be entitled to
defer the calling of an election to fill a vacancy indefinitely, or to simply
declare that he would not be advising the President to issue a writ of
election (unless he intends to advise the President to dissolve Parliament in
the near future). In this regard, we would reiterate the point made earlier
[2013] 4SLR
37
that a Member represents and is the voice of his constituents. If a vacancy is

left unfilled for an unnecessarily prolonged period that would raise a
serious risk of disenfranchising the residents of that constituency. There is
thus a need to balance the rights of the voters in a Parliamentary system of
government and the discretion vested in the Prime Minister to decide when
to call for by-elections to fill a vacancy. It is also a basic proposition of the
rule of law that all discretionary power is subject to legal limits: see Chng
Suan Tze v Minister for Home Affairs [1988] 2 SLR(R) 525 at [86]. Whilst
the Prime Ministers discretion as to the timing of an election to fill a casual
vacancy is subject to judicial review, it is in the nature of such a factsensitive discretion that judicial intervention would only be warranted in
exceptional cases.
86 A case much relied upon by the Attorney-General and which
illustrates how a discretionary power vested in a Minister of the
government, in a slightly different context, should be exercised is the House
of Lords decision (by a majority of 3-2) in R v Secretary of State for the
Home Department, Ex parte Fire Brigades Union [1995] 2 AC 513 (Fire
Brigades Union). The case revolved around the implementation of the
Criminal Injuries Compensation Scheme. The provisions of the scheme
were, under s 171(1) of the Criminal Justice Act 1988 (c 33) (UK), to come
into force on such day as the Secretary of State may appoint. The
Secretary of State did not bring the scheme into force and, instead,
implemented a non-statutory tariff scheme. All of the judges in the Court of
Appeal and the House of Lords, except Sir Thomas Bingham MR, found
that the Secretary of State had no duty to bring the provisions into force.
However, the House of Lords (with Lords Keith of Kinkel and Mustill
dissenting on the substantive appeal) also found that the Secretary of State
had a continuing duty to keep the implementation under active
consideration. It followed that the Secretary of State could not repudiate his
powers or otherwise act inconsistently with the continued duty to consider
bringing the statutory scheme into force. The following passage from Lord
Nicholls of Birkenheads judgment (at 575EH) is instructive:
Nevertheless, although he is not under a legal duty to appoint a
commencement day, the Secretary of State is under a legal duty to consider
whether or not to exercise the power and appoint a day. That is inherent in
the power Parliament has entrusted to him. He is under a duty to consider, in
good faith, whether he should exercise the power. Further, and this is the next
step, if the Secretary of State considers the matter and decides not to exercise
the power, that does not end his duty. The statutory commencement day
power continues to exist. The minister cannot abrogate it. The power, and the
concomitant duty to consider whether to exercise it, will continue to exist
despite any change in the holders of the office of Secretary of State. The
power is exercisable, and the duty is to be performed, by the holder for the
time being of the office of one of Her Majestys Principal Secretaries of State:
see the Interpretation Act 1978, sections 5 and 12(2) and Schedule 1. So
although he has decided not to appoint a commencement day for
38
[2013] 4SLR
sections 108 to 117, the Secretary of State remains under an obligation to

keep the matter under review. This obligation will cease only when the power
is exercised or Parliament repeals the legislation. Until then the duty to keep
under review will continue. [emphasis in original in italics; emphasis added
in bold italics]
87 We would wish to highlight the significant differences between the

discretion vested in the Prime Minister under Art 49 and the discretion
vested in the Secretary of State in Fire Brigades Union. First, whereas under
Art 49, the Prime Minister shall fill the vacancy, under the English
Criminal Justice Act 1988, the word used was may and as Lord Nicholls
said, the Secretary of State was not under a duty to appoint a
commencement date. Second, while in the case of Fire Brigades Union, the
discretion was largely dictated by policy considerations, that is not the case
here because there is an equally important consideration which the Prime
Minister must bear in mind which is the interests of the people of the
constituency in respect of which a vacancy has arisen. These differences
explain why the House of Lords held that the duty of the Secretary of State
was only to keep the question of appointing a commencement date under
review until and unless Parliament decided to repeal the Act. The sum total
of all this in the context of the present appeal is that while the Prime
Minister retains a substantial measure of discretion as to the timing of an
election to fill a casual vacancy, his discretion is not unconditional. Thus, it
will not be in order for him to declare that he will not be calling an election
to fill such a vacancy unless at that point in time he intends, in the near
future, to advise the President to dissolve Parliament. In any event, even if
at a particular point in time he feels that it would not be appropriate to call
for an election to fill a vacancy, he must still review the circumstances from
time to time and call for election to fill the vacancy if and when the
circumstances have changed.
88 In the light of our decision on the Discretionary Question as set out in
[74][78] above, we are constrained to make a further observation that the
filing of OS 196/2012 by the Appellant barely two weeks after the seat of
Hougang SMC had become vacant was so close in time to the event as to be
premature. The Prime Minister had yet to make his stand on the matter. At
the time, there was simply no basis to make any complaint against the
Prime Minister as the application pre-empted any executive decision on the
matter. Further, leave should not have been granted in OS 196/2012 as by
the date of the hearing of the leave application the Prime Minister had
already announced that he would be calling a by-election to fill the vacancy
at Hougang SMC although he had not yet set his mind on a precise date (see
[2] above). At that point there would have been no basis for the court to
grant leave and the court would be well within its power to dismiss the
application although we acknowledge that it also had the discretion to
adjourn the hearing of the leave application until a reasonable time had
elapsed. In any event, as the Writ of Election to fill the vacancy was in fact
[2013] 4SLR
39
issued on 9 May 2012, there would thereafter have been no basis to allege
that the Prime Minister had acted unreasonably in so advising the
President. There must be a prima facie factual basis upon which the court
may be asked to rule on the reasonableness or otherwise of the Prime
Minister in not calling for an election to fill the vacancy. Here there was
simply none.
Arguments based on Article 39
89 Finally, we turn now to examine briefly a new point raised by the
Appellant based on Art 39(1)(a) of the Constitution which reads:
39.(1) Parliament shall consist of
(a) such number of elected Members as is required to be returned at
a general election by the constituencies prescribed by or under any law
made by the Legislature[.]
90 The Appellant relies on this Article to aver that where the seat of an
elected Member is vacant, and until it is filled up, Parliament would as a
result of the vacancy cease to be properly constituted and does not have the
competence to make law. She highlights the difference in the wording
between Art 39(1)(a) and Arts 39(1)(b) and 39(1)(c) which touch on the
number of non-constituency MPs and nominated MPs, both of which are
limited to not exceeding 9 in number. The Attorney-Generals answer to
this new point is Art 55 which reads:
55. Parliament shall not be disqualified for the transaction of business by
reason of any vacancy among the Members thereof, including any vacancy
not filled when Parliament is first constituted or is reconstituted at any time;
and any proceedings therein shall be valid notwithstanding that some person
who was not entitled to do so sat or voted in Parliament or otherwise took
part in the proceedings.
91 The Appellants counter response to Art 55 is that the reference to

transaction of business in Art 55 does not include the exercise of
legislative power and she based this argument by tracing Art 55 back to
ss 53 and 57 of the 1955 Order, where a distinction was drawn between the
transaction of business and the making of laws. In our view, this
contention of the Appellant is tenuous. First, the sense of Art 55 must be
construed in accordance with its express terms and in the context of the
Constitution. We fail to see how the provisions under the 1955 Order could
be germane in any way to the construction of Art 55. Article 38 expressly
provides that the legislative power of Singapore vests in the President and
Parliament. It stands to reason that transaction of business of Parliament
must, of necessity, encompass the making of laws which is its most
important function. We would also point out that the Appellants argument
ignores the fact that specific Articles (ie, Arts 56 and 57) in the Constitution
expressly set out the conditions under which Parliament would have the
competence to carry out its business, which would include the business of
40
[2013] 4SLR
making laws. Under Art 56, at least one-quarter of the total number of
Members must be present before Parliament can proceed with its business.
Under Art 57, a majority of votes of the Members present and voting must
be received in order to approve any business of Parliament. On the
Appellants argument it would mean that if only a quarter of the total MPs
are present Parliament (provided there is no vacancy) could pass a law and
yet the same law cannot be passed if just one seat is vacant, even where all
existing MPs are present and voting. Such a view would only paralyse
Parliament and it is precisely to prevent such an occurrence that Art 55
expressly provides that any vacancy among the Members will not disqualify
Parliament from transacting its business. This whole argument of the
Appellant is, with respect, absurd.
Judgment
92 It will be useful at this juncture to summarise our holdings. First, for
the reasons set out in [88] above, we hold that the institution of
OS 196/2012 by the Appellant was clearly premature. Secondly, as at the
hearing of the leave application on 3 April 2012 the Prime Minister had
already declared that a by-election would be held to fill the vacancy in
Hougang SMC, leave should not have been granted by the Judge to the
Appellant to proceed with the action. If the Judge was not minded to
dismiss the leave application then he should have adjourned the hearing of
the leave application to an appropriate later date. Third, in any event, leave
having been granted, and the by-election to fill the vacancy in Hougang
SMC having been held on 26 May 2012, the Appellant did not have
standing to seek declaratory relief as she had incurred no special damage.
Fourth, Art 49 does not give the Prime Minister an unfettered discretion in
the calling of an election to fill a casual vacancy of an elected MP. He must
do so within a reasonable time and in that regard, the Prime Minister is
entitled to take into account all relevant circumstances and only in clear
cases can there be judicial intervention.
93 In the result, this appeal is dismissed. On the question of costs, in the
circumstances of this case, and bearing particularly in mind that this court
is in the main with the Appellant on the substantive issue relating to the
construction of Art 49, we think it appropriate to hold that each party is to
bear his or her own costs.
Reported by Jonathan Yap.

Vellama V AG (2013)

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[2013] 4 SLR 0001.

fm Page 1 Tuesday, October 29, 2013 9:04 AM

SINGAPORE LAW REPORTS

Vellama d/o Marie Muthu

[2013] 4 SLR 0001.fm Page 2 Tuesday, October 29, 2013 9:04 AM

SINGAPORE LAW REPORTS

[2013] 4 SLR 0001.fm Page 3 Tuesday, October 29, 2013 9:04 AM

Vellama d/o Marie Muthu v AG

make an application for a prerogative order (O 53 r 1(1)(b)). In the same

[2013] 4 SLR 0001.fm Page 4 Tuesday, October 29, 2013 9:04 AM

SINGAPORE LAW REPORTS

R v Legal Aid Board, ex parte Hardiman (CO/3193/95) (refd)

[2013] 4 SLR 0001.fm Page 5 Tuesday, October 29, 2013 9:04 AM

Vellama d/o Marie Muthu v AG

Ravi s/o Madasamy (LF Violet Netto) for the appellant;

Chao Hick Tin JA (delivering the judgment of the court):

[2013] 4 SLR 0001.fm Page 6 Tuesday, October 29, 2013 9:04 AM

SINGAPORE LAW REPORTS

In his judgment the Judge addressed two issues:

[2013] 4 SLR 0001.fm Page 7 Tuesday, October 29, 2013 9:04 AM

Vellama d/o Marie Muthu v AG

may include an application for a declaration; but

Power of Court to grant relief in addition to Mandatory Order, etc.

10 Before the amendments were made to this order in 2011, no

[2013] 4 SLR 0001.fm Page 8 Tuesday, October 29, 2013 9:04 AM

SINGAPORE LAW REPORTS

(b) no specific leave is required in relation to the declaratory relief

[2013] 4 SLR 0001.fm Page 9 Tuesday, October 29, 2013 9:04 AM

Vellama d/o Marie Muthu v AG

Commissioners v National Federation of Self-Employed and Small Businesses

14 Following the National Federation case, it is the undoubted position

[2013] 4 SLR 0001.fm Page 10 Tuesday, October 29, 2013 9:04 AM

SINGAPORE LAW REPORTS

17 It is also important to highlight that the English rule on standing,

[2013] 4 SLR 0001.fm Page 11 Tuesday, October 29, 2013 9:04 AM

Vellama d/o Marie Muthu v AG

21 The third case also placed emphasis on the issue of practical

[2013] 4 SLR 0001.fm Page 12 Tuesday, October 29, 2013 9:04 AM

SINGAPORE LAW REPORTS

22 Finally, in R (McKenzie) v Waltham Forest London Borough Council

[2013] 4 SLR 0001.fm Page 13 Tuesday, October 29, 2013 9:04 AM

Vellama d/o Marie Muthu v AG

upheld the Court of Appeals decision. Neither appellate court suggested,

Judicial discretion in our law of standing

26 It seems to follow by implication from this passage in Tan Eng Hong

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SINGAPORE LAW REPORTS

controversy. This statement though apparently broad must be viewed in its

29 The appropriate test for determining standing turns on the nature of

[2013] 4 SLR 0001.fm Page 15 Tuesday, October 29, 2013 9:04 AM

Vellama d/o Marie Muthu v AG

substantive differences depending on the nature of the right asserted an

[2013] 4 SLR 0001.fm Page 16 Tuesday, October 29, 2013 9:04 AM

SINGAPORE LAW REPORTS

31 The House of Lords, first in London Passenger Transport Board v

33 Where the applicant asserts no more than a public right which is

[2013] 4 SLR 0001.fm Page 17 Tuesday, October 29, 2013 9:04 AM

Vellama d/o Marie Muthu v AG