Jeyaretnam Kenneth Andrew v Attorney-General

• Jurisdiction: Singapore
• Judge: Tan Lee Meng J
• Judgment Date: 22 October 2012
• Neutral Citation: [2012] SGHC 210
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 657 of 2012
• Year: 2012
• Published date: 24 October 2012
• Hearing Date: 20 September 2012
• Plaintiff Counsel: M Ravi and Louis Joseph (L F Violet Netto)
• Defendant Counsel: Aedit Abdullah SC, Darryl Soh and Vanessa Yeo (Attorney-General's Chambers)
• Subject Matter: Administrative Law,Judicial review,Remedies,Constitutional Law,Constitution,Interpretation
• Citation: [2012] SGHC 210

Tan Lee Meng J:

The applicant, Mr Kenneth Andrew Jeyaretnam, sought leave to apply for prerogative orders and declarations against the Government of Singapore (“the Government”) and/or the Monetary Authority of Singapore (“the MAS”) with respect to a contingent loan of US$4 billion (“the Loan”) offered by the MAS to the International Monetary Fund (“the IMF”). He claimed that the offer of the Loan by the MAS contravened Article 144 (“Art 144”) of the Constitution of the Republic of Singapore (1999 Rev Ed) (“the Constitution”), which, in his view, required the Loan to be approved by Parliament and the President. His application was opposed by the respondent, who acted for the Government and contended that the Loan was outside the ambit of Art 144.

Background

On 20 April 2012, the MAS announced that Singapore offered the Loan as part of international efforts involving more than 30 countries, including Australia, the United Kingdom and the Republic of Korea, to ensure that the IMF had sufficient resources to deal with the ongoing financial crisis and promote global economic and financial stability. The MAS explained that its contribution was in the form of contingent loans to the IMF itself and not to countries borrowing from the IMF.

On 6 July 2012, the applicant, who took the view that the offer of the Loan breached Art 144, filed Originating Summons No 657 of 2012, in which he sought – 1 that leave be granted for the [applicant] to make:- a an application for a Prohibiting Order prohibiting the Government and/or the Monetary Authority of Singapore (“MAS”) from giving any loan and/or guarantee to the International Monetary Fund (“IMF”) unless such loan was made in accordance with the provisions of Article 144 of the Constitution (1999 Rev Ed); and/or b an application for a Quashing Order quashing the Government and/or the MAS’ decision to make a US$ 4 billion loan commitment and/or guarantee to the IMF for contravening the provisions of Article 144 of the Constitution; and/or 2 that, further to leave being granted for either or both of the abovementioned applications in [1a] and [1b], leave be granted for the [applicant] to make:- a an application for a Declaration that a loan and/or guarantee may neither be raised nor given by the Government and/or the MAS save in accordance with the provisions of Article 144 of the Constitution; and/or b an application for a Declaration that a loan commitment and/or guarantee may not be given by the Government and/or the MAS save in accordance with the provisions of Article 144 of the Constitution.

[emphasis in original]

Whether leave should be granted

An application for prerogative orders under O 53 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“ROC”) requires the leave of the court. In Public Service Commission v Lai Swee Lin Linda [2001] 1 SLR(R) 133 (“Linda Lai”), the Court of Appeal explained (at [23]) that the requirement for leave is “intended to be a means of filtering out groundless or hopeless cases at an early stage, and its aim is to prevent a wasteful use of judicial time and to protect public bodies from harassment (whether intentional or otherwise) that might arise from a need to delay implementing decisions, where the legality of such decisions is being challenged”.

Leave to apply for prerogative orders will not be granted unless the court is satisfied as to the following: The subject matter of the complaint is susceptible to judicial review; The material before the court discloses an arguable case or a prima facie case of reasonable suspicion in favour of granting the remedies sought by the applicant; and The applicant has sufficient interest in the matter.

Whether the complaint is susceptible to judicial review

It was common ground that the subject matter of the applicant’s complaint in these proceedings is susceptible to judicial review. As such, this requirement need not be further considered.

Whether there was an arguable case or a prima facie case of reasonable suspicion in favour of granting the remedies

In Chan Hiang Leng Colin and others v Minister for Information and the Arts [1996] 1 SLR(R) 294 (“Colin Chan”), the Court of Appeal held (at [25]) that to obtain leave to apply for prerogative orders, what is required to be shown is not a prima facie case, but a prima facie case of reasonable suspicion. In Linda Lai, the Court of Appeal explained (at [22]) that leave will be granted “if there appears to be a point which might, on further consideration, turn out to be an arguable case in favour of granting to the applicant the relief claimed”. This is a relatively low threshold to cross.

Art 144(1) provides as follows:

Restriction on loans, guarantees, etc. 144.—(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; (b) under the authority of any law to which this paragraph applies unless the President concurs with the giving or raising of such guarantee or loan; or (c) except under the authority of any other written law. [emphasis added]

The respondent submitted that Art 144(1) should be given a purposive interpretation to reflect the intention of Parliament, which is that no guarantee shall be given and no loan shall be raised without its approval and the concurrence of the President.

In contrast, the applicant contended that Art 144(1) should be given “a literal and dictionary reading”, in which case, no loan shall be given or raised by the Government without the approval of Parliament and the concurrence of the President. His position was that while a purposive interpretation is appropriate for fundamental rights, a different approach should be taken in the case of the accountability of the Executive to the Legislature. This assertion cannot be countenanced because s 9A(1) of the Interpretation Act (Cap 1, 2002 Rev Ed) provides that “an interpretation that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to an interpretation that would not promote that purpose or object” [emphasis added].

Art 2(9) of the Constitution provides that the Interpretation Act “shall apply for the purpose of interpreting this Constitution”. In Constitutional Reference No 1 of 1995 [1995] 1 SLR(R) 803 (“Constitutional Reference No 1”), the Constitutional Tribunal stated (at [48]) that it would be wrong to adopt a literal approach when interpreting the Constitution if the circumstances are such that this does not give effect to the will and intent of Parliament. Subsequently, in Ng Yang Sek v Public Prosecutor [1997] 2 SLR(R) 816, the Court of Appeal criticised (at [46]) interpretations of a statute that are “unduly formalistic and pay undue deference to the letter of the law, not its object”. More recently, in Adnan bin Kadir v Public Prosecutor [2012] SGHC 196, Chan Sek Keong CJ reiterated (at [52]) that “[t]he courts must always consider the purpose of the law and not simply the letter of the law”.

Art 144 must thus be interpreted in a way that would promote its purpose or object. A quick perusal of the relevant materials concerning the enactment of Art 144 revealed that it was quite plain that this constitutional provision is only engaged when the Government raises a loan or gives a guarantee and not when it gives a loan.

Comparison between the Bill, the Explanatory Statement and the final version of Art 144(1)

To begin with, the intention of Parliament becomes abundantly clear when the arrangement of the relevant words “guarantee”, “loan”, “given” and “raised” in the following three documents is taken into account: the Constitution of the Republic of Singapore (Amendment No 3) Bill 1990 (Bill 23 of 1990) (“the Bill”); the Explanatory Statement with respect to the Bill (“the Explanatory Statement”); and the amended Constitution, which incorporated Art 144(1) and Art 144(2) in 1991.

In the Bill, the first part of the proposed Art 144(1) was worded (at clause 20) as follows:

No debt, guarantee or loan shall be incurred, given or raised by the Government …

[emphasis added]

The Explanatory Statement did not use the words “debt, guarantee or loan” in the same order as in the Bill. Instead, it explained that the new financial provisions in Part XI of the Constitution, which introduced Art 144, were intended – (a) to provide that no loan, debt or guarantee may be raised, incurred or given by the Government except with the concurrence of the President or under the authority of law.

[emphasis added]

In the Bill, the words that followed the words “debt, guarantee or loan” were “incurred, given or raised”. In contrast, when the order of these words in the Bill was changed to “loan, debt or guarantee” in the Explanatory Statement, the words that followed these rearranged words were also rearranged to “raised, incurred or given”. This rearrangement indicated that “loan” was linked to “raised”, “debt” was linked to “incurred” and “guarantee” was linked to “given”. If it was intended that both the words “given” and “raised” in Art 144(1) were to apply to “loan”, there would have been no need to rearrange the order of the words “given” and “raised” in the way it was done in the Explanatory Statement.

It is also pertinent to note that when Art 144 was enacted, the word “debt” was left out of Art 144(1) on the recommendation of the Select Committee. Notably, when the word “debt” was not included in Art 144(1), the word “incurred” was also deleted. This confirms that Parliament intended to link “incurred” to “debt”, “given” to “guarantee” and “raised” to “loan” and that only the giving of guarantees and the raising of loans by the Government are within the ambit of Art 144.

Art 144 must be viewed in the context of the Elected...