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Constitutional Reference No 1 of 1995


[1995] SGCT 1
Constitution of the Republic of Singapore Tribunal
Yong Pung How CJ, M Karthigesu JA and L P Thean JA
20 February; 20 April 1995
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 Presidents 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)
Facts
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
Presidents powers thereunder to non-constitutional Bills which provided for
the circumvention or curtailment of the Presidents 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

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in Art 5(2A), and specifically to any Bill seeking to amend Art 22H to restrict the
Presidents powers thereunder to any non-constitutional Bill which provides
directly or indirectly for the circumvention or curtailment of the Presidents
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 Presidents
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 Presidents 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
Presidents powers to any non-constitutional Bill which provided directly or
indirectly for the circumvention or curtailment of the Presidents discretionary
powers conferred upon him by the Constitution: at [59].
Case(s) referred to
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)

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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)
Legislation referred to
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 Act 1984 (Vic) s 35
Chan Sek Keong (Attorney-General) and Soh Tze Bian (Attorney-Generals
Chambers) for the Government;
Joseph Grimberg (Drew & Napier) and Walter Woon (Walter Woon) for the
Presidency.

20 April 1995

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 Governments 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 Presidents powers
thereunder to any non-constitutional Bill which provides directly or
indirectly for the circumvention or curtailment of the Presidents
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

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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 nations
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 Rev 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. 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 twothirds of the total number of votes cast by the electors registered under
the Parliamentary Elections Act.

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

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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.

8
When the 1990 Bill was passed, the Prime Minister accepted the Select
Committees 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.

9
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 Presidents powers thereunder to non-constitutional Bills which
provide directly or indirectly for the circumvention or curtailment of the
Presidents discretionary powers conferred upon him by the Constitution.
The case for the Government
10 In summary, it is the Governments 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.
11 The general basis of the Governments 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.
12 The more specific basis of the AGs 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.
13 As such the legislative intent was to enact Art 5(2A) and Art 22H(1)
as mutually exclusive provisions.

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14 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.
15 In adopting a purposive interpretation of the Constitution in
accordance with s 9A of the Interpretation Act (Cap 1, 1985 Rev Ed), 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.
16 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 Governments case is
supported by the following arguments.
17 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 recognise its status as embodying
the will of Parliament until it is amended or repealed. The AG relied on the
case of The Attorney-General v Lamplough (1878) 3 Ex D 214 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.

18 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.
19 Secondly, this intent was manifested in the parenthesis to Art 22H(1)
itself. Hence, the Presidents veto power under Art 22H(1) cannot enlarge

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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.
20 Thirdly, from a reading of the White Papers and other ministerial
statements, the intention of Parliament in passing the 1990 Constitutional
Bill was to create an Elected Presidency as a check on the executive branch
of Government with respect to the spending of national reserves and the
appointments of key personnel in the public services. Relevant excerpts
from the 1988 White Paper which indicated this intention are as follows:
18(a) Parliamentary system should be preserved. The Prime
Minister and Cabinet should keep the initiative to govern the nation.
Any constitutional checks and safeguards should be confined to the
two stated areas, leaving the Prime Minister and Cabinet the full
freedom to govern in all other respects.

20
The President will be entrusted with the duty of protecting the
Republics financial assets, and preserving the integrity of the public
services. He will not be an executive President, unlike the President of
France or Sri Lanka. The Prime Minister and Cabinet will continue to
govern the country under our parliamentary system of government.

33
To safeguard our national reserves and assets, and the integrity
of the public services, it is proposed to create an Elected President who
will serve as watchdog or custodian in these two areas. The
Parliamentary system of government will not be altered. The Prime
Minister and his Cabinet will govern the nation. Even in these two
areas, the Prime Minister and his Cabinet still take the decisions, but
they must seek the Presidents concurrence. If the President does not
concur, the government which is convinced of the rightness of its
actions can take the issue to the people.
34
The power of the President to grant or withhold his concurrence
in these two areas amounts to a two-key safeguard mechanism. The
Prime Minister and Cabinet will possess one key and will take the
initiative. For their decision to be valid, the second key must be used;
namely, the President must concur.

47
As is now the case, the assent of the President will be required
before Bills become law and such assent will be given on advice.
However, he can refuse to give assent in respect of two types of
legislation, namely, where the legislation is designed to circumvent or
curtail the powers of the President to exercise his custodial role in
financial assets and his safeguard role in appointments to the public
service and statutory boards. If there is any question whether a Bill
does or does not affect these two items or is otherwise inconsistent

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with the provisions relating to the President, the matter will be decided
by the courts.

21

The 1990 White Paper further elaborated as follows:


46
The President can withhold his assent to any Bill (other than one
governed by the provisions on amendments to the Presidents powers)
which is designed to circumvent or curtail his discretionary powers
under the Constitution. When the President does so, the Prime
Minister may refer the Bill to the High Court to determine whether it is
indeed designed to circumvent or curtail these Presidential powers. If
the High Court rules that it is not, the President shall be deemed to
have assented to the Bill.
47
To entrench the Presidents safeguard powers, if the
Government subsequently intends to amend the Constitution to
change these provisions, the President can require the amendments to
be put to a national referendum, and to take effect only if two-thirds of
the votes cast support it.
48
To ensure that the Presidential custodial powers may not be
easily removed by ordinary constitutional amendments, it is proposed
that the changes to the Presidents powers be incorporated in Part III
of the Constitution. The consequence will be that subsequent
amendments to these provisions of the Constitution will have to be
confirmed by a two-third majority of the total electors at a referendum
if the President is of the view that the amendments negate the
constitutional safeguards. Provision will be made in the Constitution
accordingly to require all constitutional amendments to the proposed
Part III to be subject to confirmation by a two-third majority of the
total number of electors at a referendum, if he so directs.

22 Although the two-key safeguard mechanism was meant to be


installed to protect the custodial powers of the President, it was submitted
that the legislative scheme was that the President would not have a
permanent right to possess the key for all time. Until Art 5(2A) was brought
into operation, the Government, with due support of Parliament, had the
power to demand the return of the Presidents key. When Art 5(2A) was
brought into operation, the Government, if supported by the electorate, had
the power to demand the return of the Presidents key in the event of any
disagreement between the President and the Government over the use of
the Presidents key. In either situation, the President could not refuse such a
demand. This further supported the contention that Art 22H(1) was never
meant to affect constitutional Bills falling within the scope of Art 5(2A).
The purpose of not bringing Art 5(2A) into operation was to allow
Parliament to enact any Art 5(2A) Bill without having to face the prospect
of a referendum.
23 It was further pointed out that the word applies in the parenthetical
clause was to identify the class of Bills to be excluded from the ambit of

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Art 22H(1). Its meaning and effect were not dependent on Art 5(2A) being
in force, so long as it existed as an integral part of the parenthetical clause.
24 On a more general basis, the AG submitted that Art 22H(1) only
applied to non-constitutional Bills. In coming to that conclusion, two aids
of construction were relied on, namely, ministerial statements and the
White Papers, and other articles in the Constitution itself.
25 First, the AG set out the relationship between Art 22H(1) and various
other provisions in the Constitution.
26 According to his submission, the plenary power of Parliament to
amend the Constitution was expressed in Art 5(1) to be subject to Art 5
itself and Art 8. By implication, and applying the expressio unius canon of
construction, Art 5(1) was not subject to any other article of the
Constitution, including Art 22H, as otherwise, Art 5(1) would have been
amended to expressly include Art 22H(1).
27 As such, it would logically follow that Art 5(2A) would not fall under
Art 22H(1) as this was consistent with both the wording in Art 5(1) and the
parenthetical words in Art 22H.
28 The above arguments were reinforced by the relationship between
Arts 8 and 22H. Article 8 was not, in terms, subject to Art 22H(1), and Art 8
was not a provision within the scope of Art 5(2A). In principle, it was
possible for a Bill within the ambit of Art 8 to be passed by Parliament in
accordance with its terms which directly or indirectly circumvented or
curtailed the Presidents discretionary powers. If the subject matter of Art 8
was not within the scope of Art 22H(1), then likewise, the subject matter of
Art 5(2A) could not conceivably be within the scope of Art 22H(1).
Furthermore, the status of Art 8 supported the Governments case that
Art 22H(1) could not apply to constitutional Bills outside the scope of
Art 5(2A). If Art 8, which was one of the many constitutional provisions
outside the scope of Art 5(2A), was not subject to Art 22H(1), then any
contention that Art 22H(1) covered constitutional provisions outside the
scope of Art 5(2A) was without substance.
29 This, it was argued, was further supported by the context of Art 21.
The effect of Arts 21(1) and 21(3) was that, except as provided by the
Constitution, the President shall, in the exercise of his functions under the
Constitution or any other written law, act in accordance with the advice of
the Cabinet or of a Minister acting under the general authority of the
Cabinet. Article 21(2) then listed the functions of the President in respect of
which he may act in his own discretion.
30 Hence Art 21(2)(c) was nothing more than a listing of the
discretionary powers of the President and was not an enabling provision.
First, it was argued that a Bill seeking to amend Art 22H was not and could
not be a Bill under Art 22H(1). Such a Bill related to or affected Art 22H but

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was not under it and Art 22H(1) did not expressly include it as such.
Secondly, it was argued that the Bills which came within the ambit of
Arts 22E, 144(2) and 148A were ordinary Acts of Parliament and pertained
to non-constitutional matters. Thus, by analogy and applying the
underlying basis of the noscitur a socii canon of construction, its application
to Art 22H(1) should lead to the same result. Thus, the expression any Bill
used in Art 21(2)(c) in relation to Arts 22E, 144(2) and 148A should have
the same meaning when used in relation to Art 22H(1), that is, to a nonconstitutional Bill.
31 It was further submitted that the grant of the specific discretionary
powers to the President under the 1991 Act was not and did not intend to
make him the executive head of state. The President was to remain a
constitutional head of state with specific custodial roles in the governance
of the state and clothed with discretionary powers to discharge such roles.
This position was spelt out in the 1988 White Paper (which has been set out
above), in particular, paras 18(a), 20 and 33.
Case for the Presidency
32 Counsel for the Presidency was in agreement that a purposive
approach should be adopted in interpreting the scope of Art 22H(1).
However, the purposive approach here justified a literal interpretation in
accordance with the ordinary and natural meaning of the words used as
there was no ambiguity in the language of Art 22H(1). Counsel for the
Presidency cited a number of authorities to back this proposition, in
particular, Comptroller of Income Tax v GE Pacific Pte Ltd [1994] 2 SLR(R)
948, where the Court of Appeal stated (at [23]):
In any question of statutory interpretation, the first and most
important factor is the literal meaning of the words of the provision.

33 Accordingly, the court should examine the words of the statute first,
bearing in mind that the words of a Minister in Parliament were not the
words of a statute although parliamentary reports would greatly facilitate
the court in determining the intention of Parliament behind a certain
enactment which was ambiguous or obscure or the literal meaning of which
would lead to an absurdity.
34 Counsel for the Presidency agreed with the AG that the intention of
Parliament in passing the 1990 Bill was to create an Elected Presidency
which would form a check on the executive branch of the Government with
respect to the spending of reserves and the appointment of key personnel in
the public services.
35 However, it was contended that, in order for the institution of the
Elected Presidency to function properly, the President must have the power
to protect his constitutional powers from curtailment or circumvention by
the executive branch of Government. This was provided in the form of the

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two-key mechanism under Arts 5(2A) and 22H(1) of the Constitution


and the intention was also evident from para 47 of the 1988 White Paper
and para 46 of the 1990 White Paper. As the explanatory statement of the
Constitution (Amendment No 3) Bill 1990 (No 23/90) stated:
The new Art 22G [now Art 22H] confers upon the President the power
to withhold his assent to any Bill passed by Parliament which is
designed to circumvent or curtail the discretionary powers conferred
upon the President by the Constitution.

36 It was submitted that the 1990 Bill was put to Parliament on the basis
that it was deliberately crafted to ensure that the system would be hard to
dismantle at the hands of the Executive as was stated by the then First
Deputy Prime Minister, Mr Goh Chok Tong, on moving the second
reading of the Bill. Hence, there would have been no point in making it
difficult to remove the President if the same result could be achieved by
curtailing or circumventing the Presidents powers.
37 When the Select Committee on the Constitution recommended that
Art 5(2A) should not be brought into force until some years later, nothing
was said about Art 22H nor was the Presidents power of veto under
Art 22H(1) referred to. The concern with Art 5(2A), it was argued, was that
procedural and technical changes should not have to go to referendum.
38 To further corroborate the point, when Mr Ong Teng Cheong was
sworn in as President, the Prime Minister Mr Goh Chok Tong said:
On 3 January 1991, during the third reading of the Constitutional
Amendments, I stated my commitment to safeguard Singapores long
term future, to prevent it from being ruined or bankrupted by an
irresponsible or unscrupulous government. I said that I was putting my
money where my mouth was because I was subjecting my government
to the new checks and balances. We were prepared to have our powers
audited by a President and a Council of Presidential Advisors for the
good of Singapore. I added that, in doing so, my government would in
fact be clipping its own wings I believe it is right to restrict some of
the powers of the Executive in the long term interests of Singapore.
[emphasis added]

39 Looking then at the statute itself, it was clear that under Art 22H(1),
the President may veto any Bill which curtailed his discretionary power,
except Bills to which Art 5(2A) applied. Counsel for the Presidency sought
to illustrate the interrelationship between Art 5(2A) and Art 22H(1) by
drawing an analogy to an ancient Roman defence called the testudo. This
comprised a protective screen formed by a body of troops in close array
with overlapping shields and, if one shield should fall away, the other
shields would move forward to protect the body of the cohort.
40 Article 5(2A) gave protection to the core provisions of the
Constitution by providing for a national referendum. Article 22H(1)

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interlocked with Art 5(2A) so that anything which was not covered by a
national referendum under Art 5(2A) would be protected by a presidential
veto under Art 22H(1). Since Art 5(2A) did not apply to anything as it
was not yet in force, it was submitted that the President would be entitled to
veto any Bill, constitutional or non-constitutional, that sought to curtail or
circumvent his powers and that would include a Bill seeking to amend
Art 22H itself.
41 Counsel for the Presidency contended that it was incorrect to say that
the Presidents assent to a Bill was merely a formality. Article 21(2) clearly
stated that the President could withhold his assent in the matters set out
under sub-s (c). Similarly, under Art 5(2), Parliament could not pass a Bill
unless they obtained a two-third majority of the members of Parliament.
Even so, it would still have to go to the President for his assent in
accordance with Art 58(1)(2) [Arts 58(1) and 58(2)] and the President
could still withhold his assent under Art 22H(1) read in the light of
Art 21(2)(c). This was consistent with Parliaments intention and there was
thus no contradiction between Art 5(1) and Art 22H(1). This also explained
why Art 22H was not mentioned in Arts 5(1) and 5(2) as the process was
self-explanatory.
42 The Governments contention was that if Art 22H did not allow the
President to override Art 8, then similarly, Art 22H could not apply to
Art 5(2A). Counsel for the Presidency was in agreement that the President
could not veto a Bill that had been validly passed under Art 8. However, the
AGs contention would only hold weight if Art 5(2A) was in force, which, it
was submitted, was not the case.
43 To sum it up, the case for the Presidency was that, as Art 5(2A) was
not in force, it did not apply to anything. Thus Art 22H(1) gave the
President a power to withhold his assent to any Bill, constitutional or nonconstitutional, which would circumvent or curtail his discretionary powers,
including a Bill which would seek to modify Art 22H itself. It was also
pertinent to note that there was no reason for the Government to wish to
amend Art 22H to restrict the Presidents powers to non-constitutional
Bills if it already applied only to Bills of that class.
The Tribunals answer
Statutory interpretation
44 It is well established and not disputed by either parties that a
purposive interpretation should be adopted in interpreting the Constitution
to give effect to the intent and will of Parliament. The principle to be
applied is that the words of the Act are 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: EA Driedger,
Construction of Statutes (2nd Ed, 1983) p 87. The intention is to be found at

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the time the law was enacted or in some circumstances when it


subsequently reaffirms the particular statutory provision Dimozantos v R
(No 2) (1993) 67 ALJR 812.
45 This is also evident from s 9A of the Interpretation Act (Cap 1, 1985
Rev Ed) which states:
(1) 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.
(2) Subject to subsection (4) if any material not forming part of
the written law is capable of assisting in the ascertainment of the
meaning of the provision, consideration may be given to that material

(a) to confirm that the meaning of the provision is the


ordinary meaning conveyed by the text of the provision taking
into account its context in the written law and the purpose or
object underlying the written law; or
(b)

to ascertain the meaning of the provision when


(i)

the provision is ambiguous or obscure; or

(ii) the ordinary meaning conveyed by the text of the


provision taking into account its context in the written
law and the purpose or object underlying the written law
leads to a result that is manifestly absurd or unreasonable.

(4) In determining whether consideration should be given to any


material in accordance with subsection (2), or in determining the
weight to be given to any such material, regard shall be had, in addition
to any other relevant matters, to
(a) the desirability of persons being able to rely on the
ordinary meaning conveyed by the text of the provision taking
into account its context in the written law and the purpose or
object underlying the written law;

46 This is clearly an instance where resort to contemporaneous speeches


and documents is sanctioned:
as an aid to the construction of legislation which is ambiguous or
obscure or the literal meaning of which leads to an absurdity. Even in
such cases references in court to Parliamentary material should only be
permitted where such material clearly discloses the mischief aimed at
or the legislative intention lying behind the ambiguous or obscure
words. [Per Lord Browne-Wilkinson in Pepper (Inspector of Taxes) v
Hart [1993] AC 593 at p 634.]

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47 In Mills v Meeking (1990) 169 CLR 214, Dawson J went further. In


discussing s 35 of the Interpretation of Legislation Act 1984 of Victoria
[which corresponds with s 9A] he said:
the approach required by s 35 needs no ambiguity or inconsistency;
it allows a court to consider the purposes of an Act in determining
whether there is more than one possible construction. Reference to the
purposes may reveal that the draftsman has inadvertently overlooked
something which he would have dealt with had his attention been
drawn to it and if it is possible as a matter of construction to repair the
defect, then this must be done.

48 In the circumstances, it would be wrong to adopt a literal approach as


suggested by counsel for the Presidency, even if Art 22H(1) was not
ambiguous or inconsistent, if the literal approach did not give effect to the
will and intent of Parliament.
Relationship between Art 5(2A) and Art 22H(1)
49 In dealing with the interpretation of Art 22H(1), it would be best to
look first at the effect of Art 5(2A) on the scope of Art 22H(1).
50 We are in agreement with the AG that although Art 5(2A) is not in
force, the suspended provision represented the will of Parliament. In Gomez
v R [1993] 2 LRC 719, the Grenada Court of Appeal adopted the following
statement from Russell, Legislative Drafting and Forms (4th Ed, 1938) at
pp 5657, which we now quote:
The question has arisen as to how an Act, the operation of which is
suspended under a suspensory section, should be dealt with, if it is
desired that it should not come into effect. An Act which has reached
the statute book, but is not brought into operation, is as much an
integral part of the statute law as an Act which has been put into effect.
The Act is an Act passed and assented to. One of the provisions
provide for suspension; but the Act is nevertheless an Act, suspended
in operation. It can, therefore, be repealed, and that is what should be
done to get rid of it.

51 In R v Secretary of State for the Home Department; ex parte Fire


Brigades Union [1995] 2 WLR 1, Hobhouse LJ said:
An Act once passed is on the Statute Book: it is Statute. But it is a
confusion to say that a provision of the Statute is thereby necessarily
part of the law of the United Kingdom. Whether or not a provision
becomes part of the law depends on whether and when it comes into
force.

52

Sir Thomas Bingham added:


Parliament intended ss 108117 and the Schedules to become part of
the law of the land. If Parliament had not intended that, both Houses
would not have approved and the royal assent would not have been

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given to a Bill containing those provisions. The enactment of the


sections must be seen as clear parliamentary approval of a statutory
criminal injuries compensation scheme as there provided for.

53 In Ex parte Fire Brigades Union, the Court of Appeal gave effect to the
will of Parliament as expressed in the suspended provisions in the Criminal
Justice Act 1988 and held that the Home Secretary could not ignore the will
of Parliament and bring into force a radically different compensation
scheme from that intended by the suspended provisions. The decision of
the Court of Appeal was recently affirmed in the House of Lords.
54 In adopting the principles enunciated above, we are of the opinion
that 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. This was further supported by the fact that the
parenthesis to Art 22H(1) gave effect to that intention, bearing in mind that
both Art 5(2A) and Art 22H(1) were enacted at the same time. We are
disposed to agree with the AG that the Presidents 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. As such, we cannot accept the analogy to a
testudo drawn by counsel for the Presidency, however novel and
persuasive that argument may be.
55 Counsel for the Presidency then sought to argue that the word
applies in the parenthesis of Art 22H(1) had the connotation in the sense
that Art 5(2A) would apply only if it was in force. Since it had not been
brought into force, Art 5(2A) applied to nothing. With respect, we find
this argument a little tenuous. 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), which
incidentally, consisted of constitutional Bills. It was not intended that its
meaning and effect were dependent on Art 5(2A) being in force.
56 Although counsel for the Presidency submitted that the legislative
intent was to give the President powers to protect his discretionary powers
from circumvention or curtailment, we would point out that this is not
entirely correct. The Elected Presidency was the mechanism by which
Parliament intended to check executive abuse on spending of financial
reserves and key appointments in the public services as evident from the
1988 and 1990 White Papers as well as ministerial statements made
preceding the enactment of the 1990 Act. The two-key mechanism
applied to the use of such discretionary powers of the President.
57 This has to be distinguished from the mechanism which Parliament
intended to use to protect the Presidents discretionary powers. The twokey mechanism had no bearing on the removal of such powers, in which
situation the power would then be handed over to the electorate under

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Art 5(2A). This was consistent with the reason for which the Government
decided to suspend the operation of Art 5(2A) so that it would be able to
make changes to the system, be it substantive, technical or procedural,
without having to face the prospect of a referendum. As such, there was no
interregnum contemplated by Parliament that, if Art 5(2A) was suspended
from operation, the President would under Art 22H(1) assume the role of
the electorate under Art 5(2A).
58 Thus we are of the view that Art 22H(1) would not apply to any Bills
which fall within the scope of Art 5(2A), and we note that the scope of
Art 5(2A) would essentially cover all constitutional Bills.
Conclusion
59 For the reasons we have given, our opinion and answer to the
question referred to us is as follows. Although Art 5(2A) of the Constitution
has not been brought into operation, the President has 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 Presidents powers thereunder
to any non-constitutional Bill which provides directly or indirectly for the
circumvention or curtailment of the Presidents discretionary powers
conferred upon him by the Constitution.
Headnoted by Douglas Chi Qiyuan.