WHERE JUDICIAL AND LEGISLATIVE POWERS CONFLICT

AuthorGOH Yihan LLB (Hons) (National University of Singapore), LLM (Harvard); Advocate and Solicitor (Singapore); Associate Professor, School of Law, Singapore Management University.
Published date01 December 2016
Date01 December 2016

Dealing with Legislative Gaps (and Non-gaps) in Singapore

This article is concerned with the resolution of legislative gaps in Singapore. Legislative gaps can arise obviously, such as when the draftsman mistakenly omitted an obvious word in a legislative provision. Gaps can also arise more ambiguously, such as where an old statute has not kept pace with modern development, thereby leaving a gap between the statute's broad objects and particular application. Beyond the presence of gaps, the courts also have to consider how much weight, if at all, is to be placed on the absence of gaps. This article will propose a framework for dealing with legislative gaps (and non-gaps) in the local context.

I. Introduction

1 According to Aristotle, when a case arises that is not covered by the law due to the legislator's oversimplification, then it is right to “correct the omission – to say what the legislator himself would have said had he been present, and would have put into his law if he had known”.1 However, just when and to what extent the courts can do this remains unclear. Today, the courts still have to deal with whether they have the power to fill in legislative gaps. The correct approach to take, as Coxon points out, is perhaps made more complicated due to the separation of powers and the doctrine of parliamentary sovereignty.2 Apart from legislative gaps, courts also have to deal with the situation where Parliament has intentionally not left a gap but it is unclear if that was intended to preclude judicial intervention. The Singapore courts are

not spared from these difficulties. Indeed, with the proliferation of legislation in Singapore, the courts increasingly not only have to deal with legislative gaps, but also with when Parliament has deliberately not left a gap.

2 This article is concerned with the resolution of legislative gaps and related issues in Singapore. As will be seen below,3 such gaps can arise obviously, such as when the draftsman mistakenly omitted an obvious word in a legislative provision. Gaps can also arise less obviously, such as where an old statute has not kept pace with modern development, thereby leaving a gap between the statute's broad objects and particular application. When can the courts fill in these legislative gaps, if at all? Beyond the presence of gaps, the courts also have to consider how much weight, if at all, is to be placed on the absence of gaps. For example, does the fact that Parliament has dealt with a broad area in a statute preclude a court from developing the common law in that area?

3 In dealing with these questions, this article will first outline the problem of there being no clear framework for dealing with legislative gaps in Singapore. It will then examine the current approaches towards legislative gaps. It will be seen that these approaches miss the real issue of the proper relationship between the legislative and judicial power in discerning the legislative intent behind gaps. Next, in proposing a suitable framework for dealing with legislative gaps, it will set out the relevant background, that is, the rise of legislative rule in Singapore concurrently with a robust development of the common law. With this background in mind, this article will identify several guiding norms that can be used to guide the courts' approaches towards resolving legislative gaps.

II. The problem and present approaches
A. The problem

4 The problem with legislative gaps in Singapore is best illustrated by the High Court decision of AXA Insurance Singapore Pte Ltd v Chandran s/o Natesan4 (“AXA Insurance”). In AXA Insurance, the plaintiff insurance company sued the defendant in the tort of harassment for persistently sending e-mails and phone calls to its employees and lawyers using vulgar and threatening language. The High Court rejected the plaintiff's contention, inter alia, because it doubted

that there was a tort of harassment in Singapore. It held that since Parliament had (at the time) criminalised harassment under ss 13A and 13B of the Miscellaneous Offences (Public Order and Nuisance) Act5 (“MOA”), it should be up to Parliament to determine whether the law should govern annoyance caused by means of letters, e-mails and telephone messages, and whether the present public order law ought to be expanded to allow a claim for civil remedies.6 The court was fundamentally concerned that the court, which is not accountable in the way Parliament was to the electorate, should be restrained in the lawmaking process.7 Since the tort of harassment was essentially a new tort, the court felt that Parliament should be the body to create it through a process of deliberation and debate. The court was also concerned that it would be impossible to formulate a definition for the tort of harassment that is sufficiently certain. If the courts were to proceed with a vague definition of harassment, the court was concerned that it would result in the creation of a “blockbuster tort”, which might then be used by all manners of persons for apparently minor acts of nuisance.8

5 It is respectfully submitted that the High Court in AXA Insurance adopted a far too restrictive view of the judicial law-making process. First of all, as acknowledged by the Court of Appeal, it is now widely accepted that the common law courts do make law.9 Law-making is not the exclusive domain of Parliament. In fact, even Parliament has acknowledged the existence of the tort of harassment made at common law, thereby acknowledging the courts' law-making powers. In his response speech at the Committee of Supply Debate on the Ministry of Home Affairs in 2004, Assoc Prof Ho Peng Kee acknowledged that the tort of harassment exists in Singapore. He had said this in the context of addressing protection against harassment in Singapore.10 He regarded the tort of harassment as part of the protection against harassment that gave the victim civil remedies by way of an injunction or damages. Therefore, had Parliament thought that civil remedies for harassment were within its exclusive domain, it is conceivable that it would have acted to legislatively overrule Malcomson Nicholas Hugh Bertram v

Naresh Kumar Mehta11 (“Malcomson”), especially since it had this knowledge since at least 2004. Yet, on the contrary, it regarded Malcomson as forming one of the many levels of protection against harassment in 2004.

6 More broadly, if one were to take the High Court's reasoning in AXA Insurance to its logical conclusion, then it would render the courts almost powerless in the face of changed societal conditions. As mentioned, the court's primary concern was that it did not infringe on Parliament's domain since Parliament had considered harassment in the criminal sphere. This concern is borne out by the court's holding that, since Parliament had criminalised harassment under ss 13A and 13B of the MOA, it should be up to Parliament to determine whether the law should govern harassment in the civil sphere. This means that whenever Parliament has considered an issue, the courts will be powerless to rule on that issue. Given that Parliament has obviously considered many issues to varying degrees in its legislative capacity, the reasoning in AXA Insurance means that the courts cannot consider any issue because everything has been considered by Parliament. This cannot be right.

7 The High Court's approach in AXA Insurance shows that a more calibrated approach towards legislative gaps (and correspondingly, non-gaps) should be formulated. AXA Insurance concerned an instance of legislative non-gap and, to be fair, there may be situations where the courts should not intervene in what Parliament has legislated for. However, as AXA Insurance shows, the dividing line between what is permissible and impermissible may not be all too clear. It is certainly unsatisfactory that the courts refuse to decide on an issue simply because Parliament has considered it in the broadest of fashions. The situation becomes even more unclear when one considers what Parliament meant by gaps in the legislation. The question is thus how the courts should deal with this problem.

B. Existing approaches

8 The existing approaches towards legislative gaps and non-gaps are to treat them as an issue of either statutory interpretation or whether the common law has been ousted by legislation. While similar, the existing approaches show an almost ritualistic formula that, it will be suggested below,12 misses the main question that should be answered.

(1) Question of statutory interpretation

9 When there is a legislative gap, the current approach is to discern how the gap came about and then deal with it using established solutions. In this regard, Auchie identifies three situations in which legislative gaps may arise, namely, due to an obvious drafting mistake; the drafter failing to foresee a specific situation; and the legislation being unintelligible.13

(a) Legislative gap due to obvious drafting mistake

10 The first of these situations is the most obvious and is typically referred to as a casus omissus. The full maxim dealing with such legislative gaps is casus omissus pro omisso habendus est, which means that a case omitted is to be regarded as intentionally omitted.14 The absolute rule against filling gaps has been gradually relaxed by the courts over time. In the House of Lords decision of Wentworth Securities Ltd v Jones15 (“Wentworth”), Lord Diplock laid down three conditions to be satisfied before the courts can read words into statutes, thereby filling a casus omissus. The conditions would be satisfied if:16

First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the...

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