Constitutional Reference No 1 of 1995 [1995] SGCT 1

[1995] 1SLR(R) SINGAPORE LAW REPORTS (REISSUE) 803

Constitutional Reference No 1 of 1995

[1995] SGCT 1

Constitution of the Republic of Singapore TribunalYong Pung How CJ, M Karthigesu JA and L P Thean JA20 February; 20 April 1995

Constitutional Law Constitution Interpretation Suspension of Art 5(2A) Effect on other provisions intended to be affected by Art 5(2A) Article 22H Whether President can withhold assent to Bill seeking to amend Art 22H Articles 5(2A) and 22H Constitution of the Republic of Singapore (1985 Rev Ed, 1992Reprint)

Constitutional Law President Discretionary powers Withholding of assent toBill Effect of suspension of Art 5(2A) Whether President can withhold assent toBill curtailing Presidents powers under Art 22H Articles 5(2A) and 22HConstitution of the Republic of Singapore (1985 Rev Ed, 1992 Reprint)

Statutory Interpretation Construction of statute Purposive approach Whether ambiguity necessary before purposive approach adopted Whetherreference may be made to extrinsic materials Section 9A Interpretation Act (Cap 1,1985 Rev Ed)

FactsOn 3 January 1991, Parliament passed the 1990 Constitution (AmendmentNo 3) Bill (the 1990 Bill) to establish the office of an Elected Presidency. ThePresident assented to the 1990 Bill on 18 January 1991 as the Constitution(Amendment) Act 1991 (Act 5 of 1991) (the Act).

Under the Act, a large number of provisions were added to the Constitution,including Arts 5(2A) and 22H(1) which gave rise to this Reference. Article 5(2A)provided that unless the President, acting in his discretion, otherwise directedthe Speaker in writing, a Bill seeking to amend certain articles (includingArt 22H(1)) could not be passed by Parliament unless it had been supported at anational referendum by not less than two-thirds of the total number of votes castby registered electors. Article 22H(1) provided that the President may, acting inhis discretion, withhold his assent to any Bill passed by Parliament (other than aBill to which Art 5(2A) applied) if the Bill provided for the circumvention orcurtailment of the discretionary powers conferred upon him by theConstitution. Except for Art 5(2A), the operation of which was suspended, theAct came into force on 30 November 1991.

The Government then sought to amend, inter alia, Art 22H to restrict thePresidents powers thereunder to non-constitutional Bills which provided forthe circumvention or curtailment of the Presidents discretionary powersconferred upon him by the Constitution. The Tribunal was asked to determinethe following question:

Whether because Art 5(2A) of the Constitution has not been brought intooperation, the President has the power under Art 22H(1) of the Constitution towithhold his assent to any Bill seeking to amend any of the provisions referred to

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in Art 5(2A), and specifically to any Bill seeking to amend Art 22H to restrict thePresidents powers thereunder to any non-constitutional Bill which providesdirectly or indirectly for the circumvention or curtailment of the Presidentsdiscretionary powers conferred upon him by the Constitution.

The Government argued that Art 22H(1) did not affect the legislativecompetence of Parliament to enact any law to amend that article and that it didnot empower the President to withhold his assent to such a Bill. The Presidentscounsel argued that as Art 5(2A) was not in force, it did not apply to anything.Therefore, Art 22H(1) gave the President a power to withhold his assent to anyBill which would circumvent or curtail his discretionary powers, including a Billwhich would seek to modify Art 22H itself.

Held, answering the question in the negative:

(1) A purposive interpretation was to be adopted in interpreting theConstitution to give effect to the intent and will of Parliament. The principle tobe applied was that the words of the Act were to be read in their entire contextand in their grammatical and ordinary sense, harmoniously with the scheme ofthe Act, the object of the Act and the intention of Parliament. This was alsoevident from s 9A of the Interpretation Act (Cap 1, 1985 Rev Ed). The presentcase was clearly an instance where resort to contemporaneous speeches anddocuments was sanctioned: at [44], [45] and [46].

(2) Although Art 5(2A) was not in force, the suspended provision representedthe will of Parliament. Parliament had intended Art 5(2A) to become part of thelaw, otherwise it would not have been enacted and the assent would not havebeen given to the Bill. The Presidents veto power under Art 22H(1) could notenlarge itself by reason only of Art 5(2A) not being in force, as at the time ofenactment, Art 22H(1) did not confer such a wide veto power on the President.On a plain interpretation of the language of the parenthesis to Art 22H(1), theword applies was meant to identify the class of Bills which was to be excludedfrom the ambit of Art 22H(1). It was not intended that its meaning and effectwere dependent on Art 5(2A) being in force. Article 22H(1) would not apply toany Bills which fell within the scope of Art 5(2A): at [50], [54], [55] and [58].

(3) The President had no power under Art 22H(1) of the Constitution towithhold his assent to any Bill seeking to amend any of the provisions referred toin Art 5(2A), and specifically to any Bill seeking to amend Art 22H to restrict thePresidents powers to any non-constitutional Bill which provided directly orindirectly for the circumvention or curtailment of the Presidents discretionarypowers conferred upon him by the Constitution: at [59].

Case(s) referred toAttorney-General, The v Lamplough (1878) 3 Ex D 214 (refd)Comptroller of Income Tax v GE Pacific Pte Ltd [1994] 2 SLR(R) 948; [1994]

2 SLR 690 (refd)Dimozantos v R (No 2) (1993) 67 ALJR 812 (folld)Gomez v R [1993] 2 LRC 719 (folld)Mills v Meeking (1990) 169 CLR 214 (folld)Pepper (Inspector of Taxes) v Hart [1993] AC 593; [1993] 1 All ER 42 (folld)


[1995] 1SLR(R) Constitutional Reference No 1 of 1995 805

R v Secretary of State for the Home Department; ex parte Fire Brigades Union [1995] 2 AC 513; [1995] 1 All ER 888, CA (folld)

R v Secretary of State for the Home Department; ex parte Fire Brigades Union [1995] 2 AC 513; [1995] 2 WLR 1; [1995] 2 All ER 244, HL (folld)

Legislation referred toConstitution (Amendment) Act 1991 (Act 5 of 1991)Constitution of the Republic of Singapore (1985 Rev Ed, 1992 Reprint)

Arts 5(2A), 22H (consd);Arts 5(1), 5(2), 8, 21(1), 21(2), 21(3), 22E, 58(1), 58(2), 144(2), 148A

Interpretation Act (Cap 1, 1985 Rev Ed) s 9A(1) (consd);ss 9A(2), 9A(4)

Interpretation of Legislation Act 1984 (Vic) s 35

Chan Sek Keong (Attorney-General) and Soh Tze Bian (Attorney-Generals Chambers) for the Government; Joseph Grimberg (Drew & Napier) and Walter Woon (Walter Woon) for the Presidency.

20 April 1995 Judgment reserved.

Yong Pung How CJ (pronouncing the opinion of the tribunal):

1 This Reference came about as a result of the Government suspendingthe operation of the newly enacted Art 5(2A) of the Constitution followedby the Governments desire to amend Art 22H(1) of the Constitution.Hence arose this question for determination by this tribunal:

Whether because Art 5(2A) of the Constitution has not been broughtinto operation, the President has the power under Art 22H(1) of theConstitution to withhold his assent to any Bill seeking to amend any ofthe provisions referred to in Art 5(2A), and specifically to any Billseeking to amend Art 22H to restrict the Presidents powersthereunder to any non-constitutional Bill which provides directly orindirectly for the circumvention or curtailment of the Presidentsdiscretionary powers conferred upon him by the Constitution.

2 The AG on behalf of the Government and counsel appointed by thetribunal to protect the interests of the Presidency made submissionsrespectively, with which we shall now deal in turn. However, it would beappropriate to provide first a brief background to the reference.

The constitutional background

3 On 9 August 1965, Singapore achieved its independence fromMalaysia pursuant to the Independence of Singapore Agreement 1965made between the Government of Malaysia and the Government ofSingapore. On 22 December 1965 the Constitution (Amendment) Act(No 8 of 1965) was enacted by the Yang di-Pertuan Negara with the advice



and consent of the Legislative Assembly of Singapore. The Act changed,inter alia, the titles of Yang di-Pertuan Negara of Singapore to Presidentof Singapore and the Legislative Assembly to Parliament. Since then,the Constitution has been amended many times.

4 On 3 January 1991, Parliament passed the 1990 Constitution(Amendment No 3) Bill (hereinafter referred to as the 1990 Bill) toestablish the office of an Elected Presidency. It was subsequently assented toby the President on 18 January 1991 as the Constitution (Amendment) Act(No 5 of 1991) (hereinafter referred to as the 1991 Act). Except forArt 5(2A), the Act came into operation on 30 November 1991.

5 The concept of an Elected Presidency was first proposed in the 1988White Paper and subsequently refined in the 1990 White Paper. As evidentfrom the titles of the White Papers, the Elected Presidency was designedprimarily to meet two concerns of the Government, namely, how to ensurethat no government, present or future, would squander the nationsreserves and to ensure that the integrity of the public service would bepreserved. The 1990 White Paper also identified three additional safeguardroles for the Elected President for which he would also be conferreddiscretionary powers. They were as follows:

(a) to give or refuse his concurrence to any decision by the Ministerto continue to detain a person under the Internal Security Act(Cap 143) made against the recommendation of an advisory board;

(b) to cancel or vary a restraining order made under theMaintenance of Religious Harmony Act (Cap 167A, 1991 Rev Ed)where the Minister acts contrary to the advice of the PresidentialCouncil on Religious Harmony; and

(c) to concur with the decision of the Director of CPIB to proceedto investigate any Minister for corrupt practices where the PrimeMinister has refused his consent to such an inquiry or investigation.

6 The 1990 Bill was passed on 3 January 1991 and contained, inter alia,the two new provisions, namely, Arts 5(2A) and 22H(1), which give rise tothis Reference. Article 5(2A) provided as follows:

Unless the President, acting in his discretion, otherwise directs theSpeaker in writing, a Bill seeking to amend this clause, Arts 17 to 22,22A to 22O, 35, 65, 66, 69, 70, 93A, 94, 95, 105, 107, 110A, 110B, 151 orany provision in Part IV or XI shall not be passed by Parliament unlessit has been supported at a national referendum by not less than two-thirds of the total number of votes cast by the electors registered underthe Parliamentary Elections Act.

7 Article 22H(1) provided that:

The President may, acting in his discretion, in writing withhold hisassent to any Bill passed by Parliament (other than a Bill to which



Art 5(2A) applies) if the Bill provides, directly or indirectly, for thecircumvention or curtailment of the discretionary powers conferredupon him by this Constitution.

8 When the 1990 Bill was passed, the Prime Minister accepted the SelectCommittees recommendation to suspend the operation of Art 5(2A). Atthe Third Reading of the 1990 Bill, the Prime Minister, Mr Goh Chok Tongsaid:

The Select Committee has quite rightly said that we should giveourselves a grace period for making amendments in the light of actualimplementation. Such amendments ought not be subject to the strictprovisions of a referendum set out in new Art 5(2A). Hence, newArt 5(2A) should be brought into operation only after this period ofadjustments and refinements. I agree with this comment. But the SelectCommittee was probably too optimistic in believing that a period oftwo years would be enough to iron out all the problems. I favour givingourselves more time, to avoid having to go to referendum onprocedural and technical provisions. I suggest we give ourselves at leastfour years for adjustments, modifications and refinements to be made.

9 The suspension of the operation of Art 5(2A) has given rise to a doubtas to the scope of Art 22H(1). The Government now wishes to make someadjustments to the system by seeking to amend, inter alia, Art 22H torestrict the Presidents powers thereunder to non-constitutional Bills whichprovide directly or indirectly for the circumvention or curtailment of thePresidents discretionary powers conferred upon him by the Constitution.

The case for the Government

10 In summary, it is the Governments case that Art 22H(1) does notaffect the legislative competence of Parliament to enact any law to amendthat article and that it does not empower the President to withhold hisassent to such a Bill. The argument is as follows.

11 The general basis of the Governments case is that irrespective ofwhether Art 5(2A) is or is not in force, the scope of Art 22H(1) wasintended by Parliament at the time of its enactment to be restricted and isstill restricted to non-constitutional Bills of Parliament of the characterdescribed therein and thus all constitutional Bills are outside its scope ofoperation.

12 The more specific basis of the AGs case is that the scope ofArt 22H(1) was not intended by Parliament at the time of its enactment tocover and still does not cover any constitutional Bills within Art 5(2A)although Art 5(2A) is not in force.

13 As such the legislative intent was to enact Art 5(2A) and Art 22H(1)as mutually exclusive provisions.



14 The specific issue raised by the Government is whether the scope ofArt 22H(1) was intended by Parliament to cover any constitutional Billswhich fell within Art 5(2A). Although Art 5(2A) has not been brought intooperation, it does not follow that the parenthetical words in Art 22H(1)other than a Bill to which Art 5(2A) applies have no meaning attached tothem or that they cannot be given legal effect to.

15 In adopting a purposive interpretation of the Constitution inaccordance with s 9A of the Interpretation Act (Cap 1, 1985 Rev Ed), thecourt would be entitled to look at all legislative materials to ascertain themeaning of any provision of a written law, whether or not that provisionwas ambiguous. It would allow the court to modify or reject the literalmeaning of any provision to give effect to such purpose or object, and tochange the legislative words to achieve that purpose or object, once theintention of Parliament was ascertained. In this case, the literal rule ofinterpretation should not be applied to interpret Art 22H(1) as its languageis ambiguous and its scope uncertain particularly when read in the contextof various other articles in the Constitution.

16 The intention of Parliament when both Arts 5(2A) and 22H(1) wereenacted was that the President would have no power to withhold his assentto any Bill within the scope of Art 5(2A). The Governments case issupported by the following arguments.

17 First, although Art 5(2A) is not yet in force, the suspended provisionwhich has not been repealed represented the will of Parliament. Bearing inmind that Art 5(2A) and Art 22H(1) were enacted at the same time,Parliament would not have enacted Art 5(2A) and the President assented tothe Bill containing it if it did not intend that article to become part of thelaw of the land. As such the court must recognise its status as embodyingthe will of Parliament until it is amended or repealed. The AG relied on thecase of The Attorney-General v Lamplough (1878) 3 Ex D 214 where Brett LJsaid:

for what we have to consider, not what was the construction of thefirst statute, but what is the effect of the repealing statute. We cannottell what is the effect of the latter without looking at the meaning of thestatute which it has repealed. We must treat it as we treat all statutes forthe purpose of construing them; we must look at the facts which wereexisting at the time the Act passed to see what was its meaning.

18 Although that case dealt with the repeal of some of the words of thestatute, it was argued that it should apply a fortiori in the present case.Article 5(2A), albeit not in force, continues to have the same meaning andscope as at the time of its enactment; likewise Art 22H(1), including theparenthetical clause.

19 Secondly, this intent was manifested in the parenthesis to Art 22H(1)itself. Hence, the Presidents veto power under Art 22H(1) cannot enlarge



itself by reason only of Art 5(2A) not being in force as, at the time ofenactment, Art 22H(1) did not confer such a wide veto power on thePresident.

20 Thirdly, from a reading of the White Papers and other ministerialstatements, the intention of Parliament in passing the 1990 ConstitutionalBill was to create an Elected Presidency as a check on the executive branchof Government with respect to the spending of national reserves and theappointments of key personnel in the public services. Relevant excerptsfrom the 1988 White Paper which indicated this intention are as follows:

18(a) Parliamentary system should be preserved. The PrimeMinister and Cabinet should keep the initiative to govern the nation. Any constitutional checks and safeguards should be confined to thetwo stated areas, leaving the Prime Minister and Cabinet the fullfreedom to govern in all other respects.

20 The President will be entrusted with the duty of protecting theRepublics financial assets, and preserving the integrity of the publicservices. He will not be an executive President, unlike the President ofFrance or Sri Lanka. The Prime Minister and Cabinet will continue togovern the country under our parliamentary system of government.

33 To safeguard our national reserves and assets, and the integrityof the public services, it is proposed to create an Elected President whowill serve as watchdog or custodian in these two areas. TheParliamentary system of government will not be altered. The PrimeMinister and his Cabinet will govern the nation. Even in these twoareas, the Prime Minister and his Cabinet still take the decisions, butthey must seek the Presidents concurrence. If the President does notconcur, the government which is convinced of the rightness of itsactions can take the issue to the people.

34 The power of the President to grant or withhold his concurrencein these two areas amounts to a two-key safeguard mechanism. ThePrime Minister and Cabinet will possess one key and will take theinitiative. For their decision to be valid, the second key must be used;namely, the President must concur.

47 As is now the case, the assent of the President will be requiredbefore Bills become law and such assent will be given on advice.However, he can refuse to give assent in respect of two types oflegislation, namely, where the legislation is designed to circumvent orcurtail the powers of the President to exercise his custodial role infinancial assets and his safeguard role in appointments to the publicservice and statutory boards. If there is any question whether a Billdoes or does not affect these two items or is otherwise inconsistent



with the provisions relating to the President, the matter will be decidedby the courts.

21 The 1990 White Paper further elaborated as follows:

46 The President can withhold his assent to any Bill (other than onegoverned by the provisions on amendments to the Presidents powers)which is designed to circumvent or curtail his discretionary powersunder the Constitution. When the President does so, the PrimeMinister may refer the Bill to the High Court to determine whether it isindeed designed to circumvent or curtail these Presidential powers. Ifthe High Court rules that it is not, the President shall be deemed tohave assented to the Bill.

47 To entrench the Presidents safeguard powers, if theGovernment subsequently intends to amend the Constitution tochange these provisions, the President can require the amendments tobe put to a national referendum, and to take effect only if two-thirds ofthe votes cast support it.

48 To ensure that the Presidential custodial powers may not beeasily removed by ordinary constitutional amendments, it is proposedthat the changes to the Presidents powers be incorporated in Part IIIof the Constitution. The consequence will be that subsequentamendments to these provisions of the Constitution will have to beconfirmed by a two-third majority of the total electors at a referendumif the President is of the view that the amendments negate theconstitutional safeguards. Provision will be made in the Constitutionaccordingly to require all constitutional amendments to the proposedPart III to be subject to confirmation by a two-third majority of thetotal number of electors at a referendum, if he so directs.

22 Although the two-key safeguard mechanism was meant to beinstalled to protect the custodial powers of the President, it was submittedthat the legislative scheme was that the President would not have apermanent right to possess the key for all time. Until Art 5(2A) was broughtinto operation, the Government, with due support of Parliament, had thepower to demand the return of the Presidents key. When Art 5(2A) wasbrought into operation, the Government, if supported by the electorate, hadthe power to demand the return of the Presidents key in the event of anydisagreement between the President and the Government over the use ofthe Presidents key. In either situation, the President could not refuse such ademand. This further supported the contention that Art 22H(1) was nevermeant to affect constitutional Bills falling within the scope of Art 5(2A).The purpose of not bringing Art 5(2A) into operation was to allowParliament to enact any Art 5(2A) Bill without having to face the prospectof a referendum.

23 It was further pointed out that the word applies in the parentheticalclause was to identify the class of Bills to be excluded from the ambit of



Art 22H(1). Its meaning and effect were not dependent on Art 5(2A) beingin force, so long as it existed as an integral part of the parenthetical clause.

24 On a more general basis, the AG submitted that Art 22H(1) onlyapplied to non-constitutional Bills. In coming to that conclusion, two aidsof construction were relied on, namely, ministerial statements and theWhite Papers, and other articles in the Constitution itself.

25 First, the AG set out the relationship between Art 22H(1) and variousother provisions in the Constitution.

26 According to his submission, the plenary power of Parliament toamend the Constitution was expressed in Art 5(1) to be subject to Art 5itself and Art 8. By implication, and applying the expressio unius canon ofconstruction, Art 5(1) was not subject to any other article of theConstitution, including Art 22H, as otherwise, Art 5(1) would have beenamended to expressly include Art 22H(1).

27 As such, it would logically follow that Art 5(2A) would not fall underArt 22H(1) as this was consistent with both the wording in Art 5(1) and theparenthetical words in Art 22H.

28 The above arguments were reinforced by the relationship betweenArts 8 and 22H. Article 8 was not, in terms, subject to Art 22H(1), and Art 8was not a provision within the scope of Art 5(2A). In principle, it waspossible for a Bill within the ambit of Art 8 to be passed by Parliament inaccordance with its terms which directly or indirectly circumvented orcurtailed the Presidents discretionary powers. If the subject matter of Art 8was not within the scope of Art 22H(1), then likewise, the subject matter ofArt 5(2A) could not conceivably be within the scope of Art 22H(1).Furthermore, the status of Art 8 supported the Governments case thatArt 22H(1) could not apply to constitutional Bills outside the scope ofArt 5(2A). If Art 8, which was one of the many constitutional provisionsoutside the scope of Art 5(2A), was not subject to Art 22H(1), then anycontention that Art 22H(1) covered constitutional provisions outside thescope of Art 5(2A) was without substance.

29 This, it was argued, was further supported by the context of Art 21.The effect of Arts 21(1) and 21(3) was that, except as provided by theConstitution, the President shall, in the exercise of his functions under theConstitution or any other written law, act in accordance with the advice ofthe Cabinet or of a Minister acting under the general authority of theCabinet. Article 21(2) then listed the functions of the President in respect ofwhich he may act in his own discretion.

30 Hence Art 21(2)(c) was nothing more than a listing of thediscretionary powers of the President and was not an enabling provision.First, it was argued that a Bill seeking to amend Art 22H was not and couldnot be a Bill under Art 22H(1). Such a Bill related to or affected Art 22H but



was not under it and Art 22H(1) did not expressly include it as such.Secondly, it was argued that the Bills which came within the ambit ofArts 22E, 144(2) and 148A were ordinary Acts of Parliament and pertainedto non-constitutional matters. Thus, by analogy and applying theunderlying basis of the noscitur a socii canon of construction, its applicationto Art 22H(1) should lead to the same result. Thus, the expression any Billused in Art 21(2)(c) in relation to Arts 22E, 144(2) and 148A should havethe same meaning when used in relation to Art 22H(1), that is, to a non-constitutional Bill.

31 It was further submitted that the grant of the specific discretionarypowers to the President under the 1991 Act was not and did not intend tomake him the executive head of state. The President was to remain aconstitutional head of state with specific custodial roles in the governanceof the state and clothed with discretionary powers to discharge such roles.This position was spelt out in the 1988 White Paper (which has been set outabove), in particular, paras 18(a), 20 and 33.

Case for the Presidency

32 Counsel for the Presidency was in agreement that a purposiveapproach should be adopted in interpreting the scope of Art 22H(1).However, the purposive approach here justified a literal interpretation inaccordance with the ordinary and natural meaning of the words used asthere was no ambiguity in the language of Art 22H(1). Counsel for thePresidency cited a number of authorities to back this proposition, inparticular, Comptroller of Income Tax v GE Pacific Pte Ltd [1994] 2 SLR(R)948, where the Court of Appeal stated (at [23]):

In any question of statutory interpretation, the first and mostimportant factor is the literal meaning of the words of the provision.

33 Accordingly, the court should examine the words of the statute first,bearing in mind that the words of a Minister in Parliament were not thewords of a statute although parliamentary reports would greatly facilitatethe court in determining the intention of Parliament behind a certainenactment which was ambiguous or obscure or the literal meaning of whichwould lead to an absurdity.

34 Counsel for the Presidency agreed with the AG that the intention ofParliament in passing the 1990 Bill was to create an Elected Presidencywhich would form a check on the executive branch of the Government withrespect to the spending of reserves and the appointment of key personnel inthe public services.

35 However, it was contended that, in order for the institution of theElected Presidency to function properly, the President must have the powerto protect his constitutional powers from curtailment or circumvention bythe executive branch of Government. This was provided in the form of the



two-key mechanism under Arts 5(2A) and 22H(1) of the Constitutionand the intention was also evident from para 47 of the 1988 White Paperand para 46 of the 1990 White Paper. As the explanatory statement of theConstitution (Amendment No 3) Bill 1990 (No 23/90) stated:

The new Art 22G [now Art 22H] confers upon the President the powerto withhold his assent to any Bill passed by Parliament which isdesigned to circumvent or curtail the discretionary powers conferredupon the President by the Constitution.

36 It was submitted that the 1990 Bill was put to Parliament on the basisthat it was deliberately crafted to ensure that the system would be hard todismantle at the hands of the Executive as was stated by the then FirstDeputy Prime Minister, Mr Goh Chok Tong, on moving the secondreading of the Bill. Hence, there would have been no point in making itdifficult to remove the President if the same result could be achieved bycurtailing or circumventing the Presidents powers.

37 When the Select Committee on the Constitution recommended thatArt 5(2A) should not be brought into force until some years later, nothingwas said about Art 22H nor was the Presidents power of veto underArt 22H(1) referred to. The concern with Art 5(2A), it was argued, was thatprocedural and technical changes should not have to go to referendum.

38 To further corroborate the point, when Mr Ong Teng Cheong wassworn in as President, the Prime Minister Mr Goh Chok Tong said:

On 3 January 1991, during the third reading of the ConstitutionalAmendments, I stated my commitment to safeguard Singapores longterm future, to prevent it from being ruined or bankrupted by anirresponsible or unscrupulous government. I said that I was putting mymoney where my mouth was because I was subjecting my governmentto the new checks and balances. We were prepared to have our powersaudited by a President and a Council of Presidential Advisors for thegood of Singapore. I added that, in doing so, my government would infact be clipping its own wings I believe it is right to restrict some ofthe powers of the Executive in the long term interests of Singapore.

[emphasis added]

39 Looking then at the statute itself, it was clear that under Art 22H(1),the President may veto any Bill which curtailed his discretionary power,except Bills to which Art 5(2A) applied. Counsel for the Presidency soughtto illustrate the interrelationship between Art 5(2A) and Art 22H(1) bydrawing an analogy to an ancient Roman defence called the testudo. Thiscomprised a protective screen formed by a body of troops in close arraywith overlapping shields and, if one shield should fall away, the othershields would move forward to protect the body of the cohort.

40 Article 5(2A) gave protection to the core provisions of theConstitution by providing for a national referendum. Article 22H(1)



interlocked with Art 5(2A) so that anything which was not covered by anational referendum under Art 5(2A) would be protected by a presidentialveto under Art 22H(1). Since Art 5(2A) did not apply to anything as itwas not yet in force, it was submitted that the President would be entitled toveto any Bill, constitutional or non-constitutional, that sought to curtail orcircumvent his powers and that would include a Bill seeking to amendArt 22H itself.

41 Counsel for the Presidency contended that it was incorrect to say thatthe Presidents assent to a Bill was merely a formality. Article 21(2) clearlystated that the President could withhold his assent in the matters set outunder sub-s (c). Similarly, under Art 5(2), Parliament could not pass a Billunless they obtained a two-third majority of the members of Parliament.Even so, it would still have to go to the President for his assent inaccordance with Art 58(1)(2) [Arts 58(1) and 58(2)] and the Presidentcould still withhold his assent under Art 22H(1) read in the light ofArt 21(2)(c). This was consistent with Parliaments intention and there wasthus no contradiction between Art 5(1) and Art 22H(1). This also explainedwhy Art 22H was not mentioned in Arts 5(1) and 5(2) as the process wasself-explanatory.

42 The Governments contention was that if Art 22H did not allow thePresident to override Art 8, then similarly, Art 22H could not apply toArt 5(2A). Counsel for the Presidency was in agreement that the Presidentcould not veto a Bill that had been validly passed under Art 8. However, theAGs contention would only hold weight if Art 5(2A) was in force, which, itwas submitted, was not the case.

43 To sum it up, the case for the Presidency was that, as Art 5(2A) wasnot in force, it did not apply to anything. Thus Art 22H(1) gave thePresident a power to withhold his assent to any Bill, constitutional or non-constitutional, which would circumvent or curtail his discretionary powers,including a Bill which would seek to modify Art 22H itself. It was alsopertinent to note that there was no reason for the Government to wish toamend Art 22H to restrict the Presidents powers to non-constitutionalBills if it already applied only to Bills of that class.

The Tribunals answer

Statutory interpretation

44 It is well established and not disputed by either parties that apurposive interpretation should be adopted in interpreting the Constitutionto give effect to the intent and will of Parliament. The principle to beapplied is that the words of the Act are to be read in their entire context andin their grammatical and ordinary sense, harmoniously with the scheme ofthe Act, the object of the Act and the intention of Parliament: EA Driedger,Construction of Statutes (2nd Ed, 1983) p 87. The intention is to be found at



the time the law was enacted or in some circumstances when itsubsequently reaffirms the particular statutory provision Dimozantos v R(No 2) (1993) 67 ALJR 812.

45 This is also evident from s 9A of the Interpretation Act (Cap 1, 1985Rev Ed) which states:

(1) an interpretation that would promote the purpose or objectunderlying the written law (whether that purpose or object is expresslystated in the written law or not) shall be preferred to an interpretationthat would not promote that purpose or object.

(2) Subject to subsection (4) if any material not forming part ofthe written law is capable of assisting in the ascertainment of themeaning of the provision, consideration may be given to that material

(a) to confirm that the meaning of the provision is theordinary meaning conveyed by the text of the provision takinginto account its context in the written law and the purpose orobject underlying the written law; or

(b) to ascertain the meaning of the provision when

(i) the provision is ambiguous or obscure; or

(ii) the ordinary meaning conveyed by the text of theprovision taking into account its context in the writtenlaw and the purpose or object underlying the written lawleads to a result that is manifestly absurd or unreasonable.

(4) In determining whether consideration should be given to anymaterial in accordance with subsection (2), or in determining theweight to be given to any such material, regard shall be had, in additionto any other relevant matters, to

(a) the desirability of persons being able to rely on theordinary meaning conveyed by the text of the provision takinginto account its context in the written law and the purpose orobject underlying the written law;

46 This is clearly an instance where resort to contemporaneous speechesand documents is sanctioned:

as an aid to the construction of legislation which is ambiguous orobscure or the literal meaning of which leads to an absurdity. Even insuch cases references in court to Parliamentary material should only bepermitted where such material clearly discloses the mischief aimed ator the legislative intention lying behind the ambiguous or obscurewords. [Per Lord Browne-Wilkinson in Pepper (Inspector of Taxes) vHart [1993] AC 593 at p 634.]



47 In Mills v Meeking (1990) 169 CLR 214, Dawson J went further. Indiscussing s 35 of the Interpretation of Legislation Act 1984 of Victoria[which corresponds with s 9A] he said:

the approach required by s 35 needs no ambiguity or inconsistency;it allows a court to consider the purposes of an Act in determiningwhether there is more than one possible construction. Reference to thepurposes may reveal that the draftsman has inadvertently overlookedsomething which he would have dealt with had his attention beendrawn to it and if it is possible as a matter of construction to repair thedefect, then this must be done.

48 In the circumstances, it would be wrong to adopt a literal approach assuggested by counsel for the Presidency, even if Art 22H(1) was notambiguous or inconsistent, if the literal approach did not give effect to thewill and intent of Parliament.

Relationship between Art 5(2A) and Art 22H(1)

49 In dealing with the interpretation of Art 22H(1), it would be best tolook first at the effect of Art 5(2A) on the scope of Art 22H(1).

50 We are in agreement with the AG that although Art 5(2A) is not inforce, the suspended provision represented the will of Parliament. In Gomezv R [1993] 2 LRC 719, the Grenada Court of Appeal adopted the followingstatement from Russell, Legislative Drafting and Forms (4th Ed, 1938) atpp 5657, which we now quote:

The question has arisen as to how an Act, the operation of which issuspended under a suspensory section, should be dealt with, if it isdesired that it should not come into effect. An Act which has reachedthe statute book, but is not brought into operation, is as much anintegral part of the statute law as an Act which has been put into effect.The Act is an Act passed and assented to. One of the provisionsprovide for suspension; but the Act is nevertheless an Act, suspendedin operation. It can, therefore, be repealed, and that is what should bedone to get rid of it.

51 In R v Secretary of State for the Home Department; ex parte FireBrigades Union [1995] 2 WLR 1, Hobhouse LJ said:

An Act once passed is on the Statute Book: it is Statute. But it is aconfusion to say that a provision of the Statute is thereby necessarilypart of the law of the United Kingdom. Whether or not a provisionbecomes part of the law depends on whether and when it comes intoforce.

52 Sir Thomas Bingham added:

Parliament intended ss 108117 and the Schedules to become part ofthe law of the land. If Parliament had not intended that, both Houseswould not have approved and the royal assent would not have been



given to a Bill containing those provisions. The enactment of thesections must be seen as clear parliamentary approval of a statutorycriminal injuries compensation scheme as there provided for.

53 In Ex parte Fire Brigades Union, the Court of Appeal gave effect to thewill of Parliament as expressed in the suspended provisions in the CriminalJustice Act 1988 and held that the Home Secretary could not ignore the willof Parliament and bring into force a radically different compensationscheme from that intended by the suspended provisions. The decision ofthe Court of Appeal was recently affirmed in the House of Lords.

54 In adopting the principles enunciated above, we are of the opinionthat Parliament had intended Art 5(2A) to become part of the law,otherwise it would not have been enacted and the assent would not havebeen given to the Bill. This was further supported by the fact that theparenthesis to Art 22H(1) gave effect to that intention, bearing in mind thatboth Art 5(2A) and Art 22H(1) were enacted at the same time. We aredisposed to agree with the AG that the Presidents veto power underArt 22H(1) could not enlarge itself by reason only of Art 5(2A) not being inforce as, at the time of enactment, Art 22H(1) did not confer such a wideveto power on the President. As such, we cannot accept the analogy to atestudo drawn by counsel for the Presidency, however novel andpersuasive that argument may be.

55 Counsel for the Presidency then sought to argue that the wordapplies in the parenthesis of Art 22H(1) had the connotation in the sensethat Art 5(2A) would apply only if it was in force. Since it had not beenbrought into force, Art 5(2A) applied to nothing. With respect, we findthis argument a little tenuous. On a plain interpretation of the language ofthe parenthesis to Art 22H(1), the word applies was meant to identify theclass of Bills which was to be excluded from the ambit of Art 22H(1), whichincidentally, consisted of constitutional Bills. It was not intended that itsmeaning and effect were dependent on Art 5(2A) being in force.

56 Although counsel for the Presidency submitted that the legislativeintent was to give the President powers to protect his discretionary powersfrom circumvention or curtailment, we would point out that this is notentirely correct. The Elected Presidency was the mechanism by whichParliament intended to check executive abuse on spending of financialreserves and key appointments in the public services as evident from the1988 and 1990 White Papers as well as ministerial statements madepreceding the enactment of the 1990 Act. The two-key mechanismapplied to the use of such discretionary powers of the President.

57 This has to be distinguished from the mechanism which Parliamentintended to use to protect the Presidents discretionary powers. The two-key mechanism had no bearing on the removal of such powers, in whichsituation the power would then be handed over to the electorate under



Art 5(2A). This was consistent with the reason for which the Governmentdecided to suspend the operation of Art 5(2A) so that it would be able tomake changes to the system, be it substantive, technical or procedural,without having to face the prospect of a referendum. As such, there was nointerregnum contemplated by Parliament that, if Art 5(2A) was suspendedfrom operation, the President would under Art 22H(1) assume the role ofthe electorate under Art 5(2A).

58 Thus we are of the view that Art 22H(1) would not apply to any Billswhich fall within the scope of Art 5(2A), and we note that the scope ofArt 5(2A) would essentially cover all constitutional Bills.

Conclusion

59 For the reasons we have given, our opinion and answer to thequestion referred to us is as follows. Although Art 5(2A) of the Constitutionhas not been brought into operation, the President has no power underArt 22H(1) of the Constitution to withhold his assent to any Bill seeking toamend any of the provisions referred to in Art 5(2A), and specifically to anyBill seeking to amend Art 22H to restrict the Presidents powers thereunderto any non-constitutional Bill which provides directly or indirectly for thecircumvention or curtailment of the Presidents discretionary powersconferred upon him by the Constitution.

Headnoted by Douglas Chi Qiyuan.


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Constitutional Reference No 1 of 1995 [1995] SGCT 1