Court of Appeal gives green light to unlawful governance
The Court of Appeal has just handed down judgement in Kenneth Jeyaretnam’s IMF loan case. The case is crucially important and it raises two key points. Can the government lend away the wealth of the nation without Presidential approval? And can an individual citizen challenge the behaviour of the government in court, if it is alleged that there has been a breach of the constitution? The ruling of the court is against Kenneth on both counts. The government apparently can lend away the reserves without Presidential approval – effectively making the role of the President as the holder of a “second key” worthless. And furthermore, an individual citizen does not have the right to challenge the government in court, even if the case is of such gravity as this one where a breach of the constitution has been alleged. In stating as they do, that “the nature of the issue is entirely political” – the judges have completely misconstrued the reality of the case and the nature of the constitution. The decision is a difficult one to agree with. Upholding the law is not political.
For now I will only address the question of locus standi, which is the question of whether or not a private individual has the right to challenge the behaviour of the government through the courts. Long time readers of my blog will understand that I have a particular interest in this question since a government with free rein to act unlawfully without the oversight of the courts is not much more than a dictatorship.
To begin with, the court quite carefully and correctly explains that the right to bring a case is completely separate from the merits of the case itself. If one is not allowed to sue, then one cannot come to court and sue, irrespective of how likely one may be to win or lose. With this in mind, we can put aside briefly the arguments and reasons on why Kenneth lost the case, and just focus on whether he does, or should, have the right as a citizen to bring it in the first place.
locus standi is apparently a very complex and misunderstood aspect of law, and as I am not a lawyer, I do not pretend to understand it fully. My concerns with the case mostly flow from what I hope is an educated but common sense understanding of the arguments presented, as well as a reaction to the apparent lack of internal consistency in the Judges’ reasoning. The ruling on this point covers some background and case-law on the topic. Suffice to say a couple of distinctions are teased out which are crucial. Citizens intrinsically do have the right to challenge the behaviour of the government – but not automatically – there are limitations. The most important distinction appears to be between unlawful behaviour and poor policy or administration. It is much easier to sue in the case of the former than the latter.
To judges explain this (hopefully obvious) point well, and I shall quote from the ruling directly:
every public authority has the duty of observing the law … it hardly follows that every official action or decision is appropriately subject to judicial review
Later on they write:
On the other hand, it is equally important that the courts do not by use or misuse of the weapon of judicial review cross that clear boundary between what is administration, whether it be good or bad administration, and what is an unlawful performance of the statutory duty by a body charged with the performance of that duty
Clearly, the distinction exists between the allegation of unlawful government behaviour, and the allegation of poor policy, or poor administration. One of the central cases cited in the judgement is from the UK, where the tax authorities declined to prosecute a set of casual workers for providing false information. This is a case of policy and administration on the part of the authorities. There is no legal or constitutional obligation for the authorities to prosecute every supposed tax dodger. The authorities have to make a policy decision on who to prosecute, and who not to prosecute. The authorities must reasonably balance the public interest, the sums of money involved, the likelihood of a prosecution and myriad other factors before bringing a case. This public interest balancing act however doesn’t apply to the question of the government breaking the law. The government, as the judges note, “has the duty of observing the law”. Observing the law is not optional.
The judges then are abundantly aware of the distinction between the “duty of observing the law” and the pointlessness of subjecting “every official action or decision” to judicial review. The judges are also well aware that this case is about observing the law, in fact the constitution. Elsewhere in the judgement they devote some paragraphs to examining the wording of the constitution, the behaviour of the government, and in finding that the constitution was not breached. So the distinction clearly exists, the judges are aware of it, and they aware on which side of the distinction this case falls.
In finally coming to their point, the judges frame the question perfectly:
We also note Lord Diplock’s concerns where he lamented the emergence of a ‘grave lacuna’ (omission) in the system of public law if applicants were to be denied locus standi by virtue of standing rules that would stop them from bringing matters ‘to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped’
This point bears repeating. Kenneth’s case is fundamentally about “get[ting] the unlawful conduct stopped”. The judges write, citing case-law from the UK, that it would be a grave omission if the system prevented citizens like him from doing so. But yet that grave omission is exactly what they inflict on us in the very same paragraph. Reading around this very obvious and well supported point of law, and without citing any other authorities, the judges suddenly let the mask slip, and a green light to unlawful governance is given. The judges state that the principle of “get[ting] the unlawful conduct stopped” should not extend to “all” forms of unlawful conduct. A citizen cannot “always” come to court if the government has broken the law. Yet no explanation for introducing these caveats is given. The judges introduce the argument that the “gravity of the breach” must be considered. In this case, the gravity of the breach is the most grave imaginable – a breach of the constitution itself. Yet despite introducing this condition, the judges decline to assess the “gravity of the breach”. The judges decline to explain why they allow this “grave lacuna” to occur. They skirt around the issue, stating:
neither Parliament nor the President had thought fit to question the propriety of the promised loan. If the President was indeed concerned and inclined to veto the commitment, he would have done so
In this, the judges completely mis-frame the case, the wording and the supposed purpose of the constitution. There is no legal scope for the presidential “veto” they refer to. It is frankly bizarre for the judges to even suggest this. The constitution makes it clear that Presidential approval is required when article 144 applies:
—(1) No guarantee or loan shall be given or raised by the Government —
(a)except under the authority of any resolution of Parliament with which the President concurs
The whole question of this is to prevent a mischievous government going behind the President’s back and bankrupting Singapore. Stating that the President decided not to intervene is to misconstrue things entirely. By phrasing things this way, the court seems to paint seeking Presidential approval as a subjective administrative decision rather than the mandatory constitutional requirement that it really is.
In making this ruling, the court has effectively given the government a green light to rule unlawfully. If the government flagrantly and deliberately breaks the law, and you as a citizen are outraged, there seems to be little you can do about it. You certainly cannot come to court to “get the unlawful conduct stopped” – as Lord Diplock of the United Kingdom would expect. In Singapore, you do not havelocus standi. This may seem like a terrible way to run a judicial system, it certainly caused the authorities cited by the judges great concern, but it did not stop them from making such a ruling. One can only wonder as to why.
Andy Xian Wong