Vellama d/o Marie Muthu v Attorney-General

Philip Pillai J:

[2] On 28 February 2012 the Speaker of Parliament announced that the elected Member of Parliament seat in Hougang Single Member Constituency (“Hougang SMC”) had become vacant under Art 46(2) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”).

[3] On 2 March 2012 the Applicant filed OS 196 seeking a Mandatory Order and two declarations under O 53 r 1(1) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“the ROC”). The Mandatory Order sought was to enjoin the Prime Minister to advise the President to issue a writ of election for a by-election in Hougang SMC pursuant to Art 49(1) of the Constitution and to tender such advice within three months or within such reasonable time as the court deemed fit. The declarations were to declare that the Prime Minister does not have unfettered discretion in deciding whether to announce a by-election in Hougang SMC and that he must decide within three months or within such reasonable time as the court deemed fit. The Applicant filed her Statement pursuant to O 53 r 1(2) on 4 March 2012 (“the Statement”).

[4] On 9 March 2012, the Prime Minister announced in Parliament that he intended to call a by-election in Hougang SMC but that he had not decided on the timing. He would decide on the timing after taking into account all relevant factors including local, national and international factors: see Singapore Parliamentary Debates, Official Report (9 March 2012) vol 88 at col 5.

[5] On 3 April 2012, leave was granted to the Applicant to proceed with the Substantive Application. The grounds of decision to grant leave were set out in Vellama d/o Marie Muthu v Attorney-General [2012] 2 SLR 1033 (“the Leave Judgment”).

[6] On 9 May 2012, the writ of election calling for a by-election in Hougang SMC was issued by the President, upon the advice of the Prime Minister. The by-election was held on 26 May 2012.

[7] After leave was granted, the Attorney-General (“AG”) appealed to the Court of Appeal on 4 April 2012 against the decision to grant leave. Following the issue of the writ of election on 16 May 2012, the AG withdrew the appeal.

[8] On 29 May 2012, the Applicant proceeded with the Substantive Application by filing Summons No 2639 of 2012 (“SUM 2639”). This was followed by a series of interlocutory applications (“the Interlocutory Applications”) by both parties:

(a) Summons No 2684 of 2012 (“SUM 2684”) filed by the AG on 31 May 2012, to strike out SUM 2639 and seek a permanent stay on the Leave Application which had been granted;

(b) Summons No 2711 of 2012 (“SUM 2711”) filed by the Applicant on 1 June 2012 to subpoena and cross-examine the Prime Minister and to obtain discovery of the AG’s advice to the Prime Minister;

(c) Summons No 3296 of 2012 (“SUM 3296”) filed by the Applicant on 2 July 2012 to amend SUM 2639; and

(d) Summons No 3297 of 2012 (“SUM 3297”) filed by the Applicant on 2 July 2012 to amend the Statement.

[9] On 5 July 2012, the four summonses above were heard. The AG’s SUM 2684 was dismissed. The Applicant’s SUM 2711 and SUM 3296 were dismissed. Leave was granted for the Applicant to withdraw her SUM 3297.

[10] The Substantive Application and Reserved Application were heard in open court on 16 July 2012. At the hearing, the Applicant abandoned her application for the Mandatory Order. Thus, the relief sought for the Substantive Application was confined to the O 53 declarations. The court determined that it had no power under O 53 to grant standalone declarations where the principal application for a Mandatory Order which included the declarations failed. The court therefore held that the application for the declarations as part of an O 53 judicial review application failed: see the Final Judgment at [31]–[35].

[22] I do not accept the stretched analogy used by the Applicant’s counsel. There is neither principle nor authority to support the submission by the Applicant’s counsel that the Baxendale-Walker principle ought to be extended in the manner proposed to include private citizens.

(a) the Applicant had obtained no private pecuniary gain from these proceedings apart from ensuring compliance with the law and her representation in Parliament;

(b) a significant portion of the public, including constitutional law professors, shared the Applicant’s views;

(c) the resolution of the legal question before the court would give finality to an issue of general public administration;

(d) the challenge was “not doomed to fail” as the construction of Art 49 of the Constitution involved a complex, purposive interpretation exercise; and

(e) the Applicant was being represented pro bono and had sought amicable avenues of resolution.

[25] Under O 53 r 1(2), an applicant may apply for quashing orders, prohibiting orders and mandatory orders by filing an ex parte originating summons but leave of court is required to make the principal application. The requirement for leave for judicial review is to enable the court to sieve out frivolous and hopeless applications at an early stage. By contrast, an applicant may apply for a declaration under O 15 r 16 without the leave of court. However, a declaration granted under O 15 r 16 does not have the effect of quashing, prohibiting or mandating decisions or actions. In 2011, O 53 was amended to enable an applicant seeking quashing, prohibiting or mandatory orders to include an application for a declaration: see the Final Judgment at [31]–[34]. This amendment was the source of the procedural uncertainty that influenced the conduct of these applications.

[26] The leave application made by way of an ex parte application must be supported by a statement and affidavit which are to be served on the AG no later than the day preceding the hearing of the ex parte application: O 53 r 1(3). Such service does not transform what is an ex parte application into an inter partes application. Accordingly, in the event that the court grants leave, the originating summons, the statement, the supporting affidavit, the order granting leave and the summons filed must be served on all persons directly affected and other parties to the proceedings: see O 53 r 2(3).

[38] There are at least two broad circumstances under which the courts have exercised their discretion and made some other order. The first circumstance relates to the conduct of the successful party, and the second concerns public interest. As there is nothing before this court that the conduct of either party would provide grounds for some other order, I shall confine the analysis to the public interest issue.

[41] On appeal in Baxendale-Walker v Law Society [2008] 1 WLR 426, Sir Igor Judge P (as he then was) further refined (at [39]) the above rationale stated by Moses LJ: