Constitutional Reference No 1 of 1995

• Jurisdiction: Singapore
• Judge: Karthigesu
• Judgment Date: 20 April 1995
• Neutral Citation: [1995] SGCT 1
• Court: Constitutional Tribunal (Singapore)
• Published date: 19 March 2004
• Year: 1995
• Plaintiff Counsel: Chan Sek Keong (Attorney General) and Soh Tze Bian (Attorney General's Chambers)
• Defendant Counsel: Joseph Grimberg (Drew & Napier) and Walter Woon (Walter Woon)
• Subject Matter: Constitutional Law,President's 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,arts 5(2A) & 22H Constitution of the Republic of Singapore,Statutory Interpretation,Purposive interpretation,Whether ambiguity necessary before purposive approach is adopted,Intention of Parliament,s 9A Interpretation Act (Cap 1),Suspension of provision,Effect on other provisions intended to be affected by it,Determination of will of Parliament,Whether reference may be made to Parliamentary materials -arts 5(2A) & 22H Constitution of the Republic of Singapore
• Citation: [1995] SGCT 1

[Please note that this case has not been edited in accordance with the current Singapore Law Reports house style.]

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 Attorney General 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 give or refuse his concurrence to any decision by the minister to 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 the Maintenance of Religious Harmony Act (Cap 167A, 1991 Ed) where the minister acts contrary to the advice of the Presidential Council on Religious Harmony; and

(c) to concur with the decision of the Director of CPIB to proceed to investigate any minister for corrupt practices where the Prime Minister 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 to this Reference.

7 Article 5(2A) provided as follows:

Unless the President, acting in his discretion, otherwise directs the Speaker 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 or any provision in Part IV or XI shall not be passed by Parliament unless it has been supported at a national referendum by not less than two-thirds of the total number of votes cast by the electors registered under the Parliamentary Elections Act.

8 Article 22H(1) provided that:

The President may, acting in his discretion, in writing withhold his assent to any Bill passed by Parliament (other than a Bill to which art 5(2A) applies) if the Bill provides, directly or indirectly, for the circumvention or curtailment of the discretionary powers conferred upon him by this Constitution.

9 When the 1990 Bill was passed, the Prime Minister accepted the Select Committee’s recommendation to suspend the operation of art 5(2A). At the Third Reading of the 1990 Bill, the Prime Minister, Mr Goh Chok Tong said:

The Select Committee has quite rightly said that we should give ourselves a grace period for making amendments in the light of actual implementation. Such amendments ought not be subject to the strict provisions of a referendum set out in new art 5(2A). Hence, new art 5(2A) should be brought into operation only after this period of adjustments and refinements. I agree with this comment. But the Select Committee was probably too optimistic in believing that a period of two years would be enough to iron out all the problems. I favour giving ourselves more time, to avoid having to go to referendum on procedural and technical provisions. I suggest we give ourselves at least four years for adjustments, modifications and refinements to be made.

10 The suspension of the operation of art 5(2A) has given rise to a doubt as to the scope of art 22H(1). The Government now wishes to make some adjustments to the system by seeking to amend, inter alia, art 22H to restrict the President’s powers thereunder to non-constitutional Bills which provide directly or indirectly for the circumvention or curtailment of the President’s discretionary powers conferred upon him by the Constitution.

The case for the Government

11 In summary, it is the Government’s case that art 22H(1) does not affect the legislative competence of Parliament to enact any law to amend that article and that it does not empower the President to withhold his assent to such a Bill. The argument is as follows.

12 The general basis of the Government’s case is that irrespective of whether art 5(2A) is or is not in force, the scope of art 22H(1) was intended by Parliament at the time of its enactment to be restricted and is still restricted to non-constitutional Bills of Parliament of the character described therein and thus all constitutional Bills are outside its scope of operation.

13 The more specific basis of the Attorney General’s case is that the scope of art 22H(1) was not intended by Parliament at the time of its enactment to cover and still does not cover any constitutional Bills within art 5(2A) although art 5(2A) is not in force.

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

15 The specific issue raised by the Government is whether the scope of art 22H(1) was intended by Parliament to cover any constitutional Bills which fell within art 5(2A). Although art 5(2A) has not been brought into operation, 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 to them or that they cannot be given legal effect to.

16 In adopting a purposive interpretation of the Constitution in accordance with s 9A of the Interpretation Act (Cap 1), the court would be entitled to look at all legislative materials to ascertain the meaning of any provision of a written law, whether or not that provision was ambiguous. It would allow the court to modify or reject the literal meaning of any provision to give effect to such purpose or object, and to change the legislative words to achieve that purpose or object, once the intention of Parliament was ascertained. In this case, the literal rule of interpretation should not be applied to interpret art 22H(1) as its language is ambiguous and its scope uncertain particularly when read in the context of various other articles in the Constitution.

17 The intention of Parliament when both arts 5(2A) and 22H(1) were enacted was that the President would have no power to withhold his assent to any Bill within the scope of art 5(2A). The Government’s case is supported by the following arguments.

18 First, although art 5(2A) is not yet in force, the suspended provision which has not been repealed represented the will of Parliament. Bearing in mind 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 to the Bill containing it if it did not intend that article to become part of the law of the land. As such the court must recognize its status as embodying the will of Parliament until it is amended or repealed. The Attorney General relied on the case of A-G v Lamplough where Brett LJ said:

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

19 Although that case dealt with the repeal of some of the words of the statute, 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 and scope as at the time of its enactment; likewise art 22H(1), including the parenthetical clause.

20 Secondly, this intent was manifested in the parenthesis to art 22H(1) itself. Hence, the President’s veto power under art 22H(1) cannot enlarge itself by...