AuthorGOH Yihan LLB (Hons) (National University of Singapore); Teaching Assistant, Faculty of Law, National University of Singapore.
Published date01 December 2009
Date01 December 2009

15 Years on from Legislative Reform

More than 15 years ago, the Singapore Parliament passed legislation in 1993 directing the courts to prefer an interpretation that would promote the purpose or object underlying any written law. That same legislation also contained guidance on when extrinsic materials may be referred to in ascertaining the meaning of a statutory provision, as well as the type of materials which may be considered in such circumstances. This article provides an update on the 15th anniversary of the aforementioned legislative reform on statutory interpretation in Singapore, shedding light on the remarkable transformation in the approach taken by the Singapore courts towards statutory interpretation: indeed, from an initially cautious approach, the Singapore courts have now adopted an extremely expansive view of the effects of the 1993 reform. This article outlines some problems for the future, along with the attendant suggested solutions, for further consideration. It is hoped that the account provided in this article will be of interest to the particular issue of the local approach in statutory interpretation and, more broadly, to the universal and enduring problem of the proper approach towards statutory interpretation.

I. Introduction

1 In 1993, shortly after the seminal House of Lords decision of Pepper (Inspector of Taxes) v Hart1 (“Pepper v Hart”) was decided,

Parliament swiftly enacted into law statutory provisions2 within the then existing Interpretation Act,3 thereby heralding in a new4 era of statutory interpretation in Singapore. The speed with which Parliament was able to pass these enactments into law — with little, if clear and concise, debate5— was perhaps a hint of the expansive approach eventually

adopted by the courts vis-à-vis the legislative reform effected by these enactments.6 Fifteen years on,7 it is perhaps timely now to provide a comprehensive update on the effects of the legislative reform.8 Indeed, the three broad issues addressed by the legislative reform — the approach to be taken by the courts in interpreting statutes, the circumstances in which extrinsic materials may be referred to in interpreting statutes and the type of extrinsic materials which may be referred to — have been so comprehensively examined by the Singapore courts since 1993 that there is now a body of case law sufficient to compare with other jurisdictions which have adopted similar legislative reform. Yet, with this now expansive (and expanding) body of case law giving effect to the legislative reform on statutory interpretation, there have been new problems — some yet to be identified by the courts — which demand clarification.

II. Legislative reform via the Interpretation (Amendment) Act 1993

2 Before discussing the present developments relating to statutory interpretation in Singapore, it will be helpful first to summarise the circumstances under which the legislative reform of 1993 took place, as well as the substance of the reform.9

A. The position prior to legislative reform

3 Prior to the legislative reform of 1993, statutory interpretation in Singapore operated within undefined and vague parameters.10 There was simply no authoritative decision from the courts outlining the proper interpretative approach to take. Neither was there any guidance on the usability of extrinsic materials in the interpretative process. It is arguable that the courts saw no need for an overarching (and binding) approach, preferring to deal with statutory interpretation on a case-by-case basis; presumably on the basis that the flexibility in approach allows the just result to be reached in each case.

4 The lack of an authoritative decision from the Singapore courts mirrored the situation in England.11 Indeed, in as much as the Singapore legal system prior to 1993 followed the English system,12 the lack of a unifying approach reflected the English position at common law, wherein several interpretative approaches existed simultaneously, the application of one seemingly interdependent on the others.13 The decision in Low Gim Siah v Law Society of Singapore14 (“Low Gim Siah”), in which the High Court expressly preferred the purposive approach (ie, an approach which involved the ascertainment and effecting of the purpose and intention underlying the relevant statutory provision) over the other common law approaches,15 did not end the debate over the

criterion under which the purposive approach was to be adopted in Singapore:16 did the purposive approach operate to the exclusion of the other approaches, or were the courts allowed to “pick and choose” from a selection of several approaches? And if so, were there any external guidelines governing their choice? Although it might have been that several members of the House of Lords had begun to adopt the purposive approach in interpreting statutes,17 even that in England did not resolve the deeper problem of the relationship between the various approaches.18Low Gim Siah must, therefore, be seen against the backdrop of sustained and persistent parallel decisions which adopted varying approaches (and terminology) when interpreting statutes in Singapore prior to the 1993 legislative reform. For example, in Wah Tat Bank Ltd v Chan Cheng Kum,19 the High Court adopted the “plain and ordinary meaning” of a certain statutory provision without (expressly)

considering either the purpose or intention behind the statute.20 Similarly, in The “Permina 108”,21 the Court of Appeal gave the statutory provision concerned its “plain and ordinary meaning”22 because the words were “free of any ambiguity”23 and “not reasonably capable of more than one meaning”.24 The Court of Appeal subsequently declined to consider extrinsic materials in the form of an international treaty to interpret the statutory provision concerned. These decisions must raise the question of the general applicability of the purposive approach prior to the 1993 legislative reform. Indeed, the then leading English authority for the purposive approach, viz, the speech of Lord Diplock in Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd,25 was not cited in any reported Singapore decision prior to 1993 as authority in articulating the purposive approach.26 Likewise, Maunsell v Olins27 and Farrell v Alexander,28 both standing for the “golden rule of construction”, which allows for departure from the literal rule and is closer to the purposive approach, had been applied only once29 by a Singapore court prior to 1993. Therefore, the Singapore position prior to the 1993 legislative reform could fairly be said to be in a state of uncertainty, at least in relation to the proper interpretative approach to take in statutory interpretation. At the very least, it could not be said with confidence that the dominant interpretative approach was the purposive one.

5 In relation to the use of extrinsic materials, there existed an “understanding”30 that the practice of the English courts prior to Pepper v Hart would be followed, in that direct judicial reference to parliamentary debates would be prohibited.31 At the same time, there had been some departure from the strict English approach in at least two Singapore cases prior to Pepper v Hart (and, hence, before the 1993

legislative reform).32 In those cases, references to parliamentary debates featuring the Minister’s Second Reading speech were made, although the question whether such references were permitted was not explicitly addressed. Likewise, reference had been made to Explanatory Statements to Bills33 and Select Committee Reports,34 but without any detailed consideration of the permissibility of such reference at law.35 Quite clearly, the Singapore courts favoured recourse to extrinsic materials prior to the 1993 legislative reform where, if doing so, enabled a clearer understanding of the statute concerned. However, perhaps pulled back by the weight of English cases to the contrary, they declined to elaborate on the legal permissibility of such reference. It should, therefore, be cause of little surprise that when Pepper v Hart was decided, the Singapore courts very quickly cited that as authority for the approach they had already adopted informally. In PP v Lee Ngin Kiat36 (“Lee Ngin Kiat”) and Tan Boon Yong v Comptroller of Income Tax37 (“Tan Boon Yong”), both decided within the five-month period between Pepper v Hart and the 1993 legislative reform,38 the High Court and the Court of Appeal respectively each cited Pepper v Hart in support of reference to extrinsic materials; which, in both cases, included the Minister’s Second Reading speech. It is interesting that the High Court in Lee Ngin Kiat adopted an expansive reading of Pepper v Hart, although it is unclear if the court was aware of this. In that case, after stating that the statutory provision concerned was, in its plain and ordinary meaning,39 clear in its scope and intent,40 the High Court none the less went on to consider the extrinsic materials to which it was

referred. However, this is contrary to Lord Browne-Wilkinson’s cautious statement in Pepper v Hart that such recourse to extrinsic materials would only be allowed if there was either an ambiguity in the statutory provision or an absurdity arising from a literal construction.41 In Lee Ngin Kiat, not only were these conditions not met, the court had itself confirmed that there was no ambiguity or absurdity present. As such, its use of Pepper v Hart was in a confirmatory, not ascertainment, sense. This might have foreshadowed the effects of the 1993 legislative reform,42 but was an extension rather than a strict application of Pepper v Hart.

6 Finally, in relation to the type of extrinsic materials which are permitted to be referred to, it must be said that this is a question inextricably bound up with the second issue discussed in the preceding paragraph. As has been seen, the Singapore courts allowed reference...

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