Constitutional Reference No 1 of 1995

JurisdictionSingapore
CourtConstitutional Tribunal (Singapore)
Judgment Date20 April 1995

[1995] SGCT 1

Constitution of the Republic of Singapore Tribunal

Yong Pung How CJ

,

M Karthigesu JA

and

L P Thean JA

Constitutional Reference No 1 of 1995

Chan Sek Keong (Attorney-General) and Soh Tze Bian (Attorney-General's Chambers) for the Government

Joseph Grimberg (Drew & Napier) and Walter Woon (Walter Woon) for the Presidency.

Attorney-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)

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)

Constitution (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 Act1984 (Vic)s 35

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, 1992 Reprint)–Constitutional Law–President–Discretionary powers–Withholding of assent to Bill–Effect of suspension of Art 5 (2A)–Whether President can withhold assent to Bill curtailing President's powers under Art 22H–Articles 5 (2A) and 22H Constitution of the Republic of Singapore (1985 Rev Ed, 1992 Reprint)–Statutory Interpretation–Construction of statute–Purposive approach–Whether ambiguity necessary before purposive approach adopted–Whether reference may be made to extrinsic materials–Section 9A Interpretation Act (Cap 1, 1985 Rev Ed)

On 3 January 1991, Parliament passed the 1990 Constitution (Amendment No 3) Bill (“the 1990 Bill”) to establish the office of an Elected Presidency. The President 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 directed the Speaker in writing, a Bill seeking to amend certain articles (including Art 22H (1)) could not be passed by Parliament unless it had been supported at a national referendum by not less than two-thirds of the total number of votes cast by registered electors. Article 22H (1) provided that the President may, acting in his discretion, withhold his assent to any Bill passed by Parliament (other than a Bill to which Art 5 (2A) applied) if the Bill provided for the circumvention or curtailment of the discretionary powers conferred upon him by the Constitution. Except for Art 5 (2A), the operation of which was suspended, the Act came into force on 30 November 1991.

The Government then sought to amend, inter alia, Art 22H to restrict the President's powers thereunder to non-constitutional Bills which provided for the circumvention or curtailment of the President's discretionary powers conferred upon him by the Constitution. The Tribunal was asked to determine the following question:

Whether because Art 5 (2A) of the Constitution has not been brought into operation, the President has the power under Art 22H (1) of the Constitution to withhold his assent to any Bill seeking to amend any of the provisions referred to in Art 5 (2A), and specifically to any Bill seeking to amend Art 22H to restrict the President's powers thereunder to any non-constitutional Bill which provides directly or indirectly for the circumvention or curtailment of the President's discretionary powers conferred upon him by the Constitution.

The Government argued that Art 22H (1) did not affect the legislative competence of Parliament to enact any law to amend that article and that it did not empower the President to withhold his assent to such a Bill. The President's counsel 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 any Bill which would circumvent or curtail his discretionary powers, including a Bill which would seek to modify Art 22H itself.

Held, answering the question in the negative:

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

(2) Although Art 5 (2A) was not in force, the suspended provision represented the will of Parliament. Parliament had intended Art 5 (2A) to become part of the law, otherwise it would not have been enacted and the assent would not have been given to the Bill. The President's veto power under Art 22H (1) could not enlarge itself by reason only of Art 5 (2A) not being in force, as at the time of enactment, 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), the word “applies” was meant to identify the class of Bills which was to be excluded from the ambit of Art 22H (1). It was not intended that its meaning and effect were dependent on Art 5 (2A) being in force. Article 22H (1) would not apply to any 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 to withhold his assent to any Bill seeking to amend any of the provisions referred to in Art 5 (2A), and specifically to any Bill seeking to amend Art 22H to restrict the President's powers to any non-constitutional Bill which provided directly or indirectly for the circumvention or curtailment of the President's discretionary powers conferred upon him by the Constitution: at [59].

Judgment reserved.

Yong Pung How CJ

(pronouncing the opinion of the tribunal):

1 This Reference came about as a result of the Government suspending the operation of the newly enacted Art 5 (2A) of the Constitution followed by the Government's 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 brought into operation, the President has the power under Art 22H (1) of the Constitution to withhold his assent to any Bill seeking to amend any of the provisions referred to in Art 5 (2A), and specifically to any Bill seeking to amend Art 22H to restrict the President's powers thereunder to any non-constitutional Bill which provides directly or indirectly for the circumvention or curtailment of the President's discretionary powers conferred upon him by the Constitution.

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

The constitutional background

3 On 9 August 1965, Singapore achieved its independence from Malaysia pursuant to the Independence of Singapore Agreement 1965 made between the Government of Malaysia and the Government of Singapore. 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 “President of 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”) to establish the office of an Elected Presidency. It was subsequently assented to by the President on 18 January 1991 as the Constitution (Amendment) Act (No 5 of 1991) (hereinafter referred to as “the 1991 Act”). Except for Art 5 (2A), the Act came into operation on 30 November 1991.

5 The concept of an Elected Presidency was first proposed in the 1988 White Paper and subsequently refined in the 1990 White Paper. As evident from the titles of the White Papers, the Elected Presidency was designed primarily to meet two concerns of the Government, namely, how to ensure that no government, present or future, would squander the nation's reserves and to ensure that the integrity of the public service would be preserved. The 1990 White Paper also identified three additional safeguard roles for the Elected President for which he would also be conferred discretionary powers. They were as follows:

(a) to...

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