Threshold issues in Singapore administrative law

Threshold issues are legal requirements in Singapore administrative law that must be satisfied by applicants before their claims for judicial review of acts or decisions of public authorities can be dealt with by the High Court. These include showing that they have standing (locus standi) to bring cases, and that the matters are amenable to judicial review and justiciable by the Court.

Depending on the interest that the applicant seeks to represent, standing can be categorized as either private or public standing. Applicants must establish they have private standing if they seek to represent personal interests. In contrast, applicants who seek to represent the interests of a larger group or the public at large must establish public or representative standing. Where private standing is concerned, the Singapore courts have not yet directly addressed the issue of the standing required to obtain a declaration in an administrative law case, but where constitutional claims are concerned the Court of Appeal held that three elements must exist: (1) the applicant must have a real interest in bringing the case, (2) there must be a real controversy between the parties to the case, and (3) a personal right possessed by the applicant must have been violated. The Court also suggested that the same test applied to applications for prerogative orders. The legal position on public standing in administrative law cases is indeterminate as, to date, no applicant has sought to rely on public standing to obtain leave for judicial review. In constitutional law cases, the Court has drawn a distinction between public and private rights, and held that people will not have standing to vindicate public rights unless they have suffered special damage and have genuine private interests to protect or further.

For a decision by a body to be amenable to judicial review, United Kingdom and Singapore law requires the decision to have some public element, and not to relate exclusively to private law matters. The public element is determined by considering if the body's power stems from a legal source (the "source test"), or if the nature of the body is that it is carrying out some public function (the "nature test"). If the power exercised by a body has a legislative source, it will ordinarily be amenable to judicial review in the absence of compelling reasons to the contrary, but this is not an invariable rule and decisions without a sufficient public element will not be amenable to review. The latter is also the result when a body is regarded as having acted pursuant to a contract between it and the aggrieved party, rather than having exercised its statutory powers.

The subject-matter of a dispute must be justiciable before the High Court will hear the case. A decision by an executive authority will generally be considered non-justiciable if the decision requires the intricate balancing of various competing policy considerations, and judges are ill-equipped to decide the case because of their limited training, experience and access to materials; if a judicial pronouncement could embarrass another branch of government or tie its hands in the conduct of affairs traditionally falling within its purview; or if the decision involves the exercise of a prerogative power that the democratically elected branches are entrusted to take care of. Nonetheless, a dispute may prima facie involve a non-justiciable area but the courts may decide that there is a justiciable matter within it, or the courts may be able to isolate a pure question of law from what is seemingly a non-justiciable issue. Because of the principle that all powers have legal limits, the Attorney-General's exercise of prosecutorial discretion and the power to pardon or grant clemency to convicted persons exercised by the President on the Cabinet's advice are both justiciable in exceptional cases, for instance, where the powers have been exercised unconstitutionally or in bad faith.