The Singapore Law Gazette

Tan Cheng Bock v AG: Is Constitutional Interpretation As Settled As It Seems?

The recent case of Tan Cheng Bock v AG [2017] SGHC 160, [2017] SGCA 50 confirms that the same principles that apply to statutory interpretation also apply to constitutional interpretation, and that one such principle is that fundamental liberties in the Constitution must be interpreted generously. This article examines both these conclusions. It takes the view that only some principles of statutory interpretation, and not all, should apply to constitutional interpretation. It also takes the view that the principle of generous interpretation may no longer exist in Singapore law, especially given the rise of the presumption of constitutional validity of statutes and of executive action.

Introduction

The recent case of Tan Cheng Bock v AG¹ [2017] SGHC 160 (“Tan Cheng Bock (HC)”), [2017] SGCA 50 (“Tan Cheng Bock (CA)”). reaffirms the recent wisdom in constitutional interpretation by confirming that (a) the same principles of statutory interpretation apply to the Constitution, and (b) one of those principles is that fundamental liberties must be interpreted generously (“the principle of generous interpretation”).

This note examines both these aspects. It takes the view that (a) only some principles of statutory interpretation — but not all — should apply to the Constitution; and (b) it is unclear whether the principle of generous interpretation is truly settled law. This note does not address the substantive issue dealt with by the Court: whether President Wee’s last term should be considered the first term for the purposes of the Reserved Election.

The Decision in Tan Cheng Bock v AG

The issue in this case was which should be the first Presidential term to be taken into account for the purpose of the newly-introduced Reserved Election. This called for an interpretation of Articles 19B and 164 of the Constitution.² Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“Constitution”).

At first instance, the High Court held that the Constitution was to be interpreted purposively and to give effect to the intent and will of Parliament. The High Court noted that this was provided for under section 9A of the Interpretation Act³ Interpretation Act (Cap 1, 2002 Rev Ed). and applied to the Constitution by virtue of Article 2(9) of the Constitution, which provides that the Interpretation Act would apply to the Constitution. To determine the purpose of the Constitution, the first port of call would be the text and context of the relevant provisions because, if well-drafted, the purpose would emanate from the text. The Court could nevertheless refer to extraneous materials if they assist in ascertaining the meaning of the provisions.⁴ Tan Cheng Bock (HC) at [36]–[37]. It should be noted at this point that the cases that the High Court cited for these propositions involved ordinary legislation and not the Constitution.

After laying down these general principles, the High Court considered the Plaintiff’s argument that the principle of generous interpretation applied in this case. While the High Court “endorse[d] this settled principle of constitutional interpretation”, it found that the principle did not apply on the facts. The High Court reasoned that this principle applied only to fundamental rights found in Part IV of the Constitution and the right to stand for election to the Presidency was not such a right. Indeed, the High Court noted that the right to stand for election to the Presidency is very different from Part IV fundamental rights. Unlike Part IV rights, not everyone can meet the qualifying conditions and requirements — which are necessary since the President, as Head of State, is a symbol of dignity of the people and Singapore’s face to the world.⁵ Tan Cheng Bock (HC) at [40]–[44].

The High Court then applied the usual textual, contextual, and purposive interpretation techniques to Articles 19B and 164 of the Constitution and found that Parliament was entitled to specify President Wee’s last term in his presidential office as the first term for the purposes of the Reserved Election.⁶ Tan Cheng Bock (HC) at [102]–[103].

The Plaintiff appealed to the Court of Appeal. The Court of Appeal reaffirmed the principles set out by the High Court but added two further glosses. First, the relevant Parliamentary intention “is to be found at the time the law was enacted or, in some circumstances, when it subsequently reaffirms the particular statutory provision in question”.⁷ Tan Cheng Bock (CA) at [35]. Second, the usual rules and canons of statutory construction — which are grounded in common sense — also apply to constitutional interpretation. Examples of these canons include the rule that the Court should give effect to every word in the Constitution since Parliament does not legislate in vain, and the rule that Parliament is presumed not to intend an unworkable or impractical result.⁸ Tan Cheng Bock (CA) at [38]. The Court of Appeal did not comment on the High Court’s finding that the principle of generous interpretation did not apply in this case.

Similar to the High Court, the Court of Appeal then examined the relevant text, context, and extraneous materials and dismissed the appeal.⁹ Tan Cheng Bock (CA) at [134]–[135].

Tan Cheng Bock therefore reaffirms the following principles of constitutional interpretation:

1. The Constitution must be interpreted using the purposive method found in section 9A of the Interpretation Act. How this purposive method is implemented — including how to interpret the text and how to derive the purpose — appears to be exactly the same as the interpretative method used for ordinary legislation.
2. One potential gloss on the general method in point 1 above is the principle of generous interpretation, which is “settled law”. But neither the High Court nor the Court of Appeal dealt with how this principle works apart from the High Court stating that it did not apply in that case.

These principles will now be examined in turn.

Should the Approach Towards Statutory Interpretation Apply Equally to Constitutional Interpretation?

Both the High Court and the Court of Appeal in Tan Cheng Bock found that the Constitution must be interpreted purposively, in accordance with section 9A of the Interpretation Act, and that this interpretative method includes other more detailed rules such as the canons of interpretation and how to glean the purpose. Both Courts grounded their approach in Article 2(9) of the Constitution, which provides that:

Subject to this Article, the Interpretation Act (Cap 1) shall apply for the purpose of interpreting this Constitution and otherwise in relation thereto as it applies for the purpose of interpreting and otherwise in relation to any written law within the meaning of that Act.

Although Article 2(9) is specifically subject to the rest of Article 2, there is nothing in the other parts of Article 2 that affect the interpretative method. And although Article 2(9) provides that the whole of the Interpretation Act applies, section 9A is the only section relevant for the interpretative approach. Hence, prima facie it appears that the general approach towards statutory interpretation applies. Article 2(9) can be seen either as a limit that the Constitution imposes on itself, or as an incorporating clause that brings in section 9A into the Constitution. Either way, there is no doubt that the Interpretation Act applies.

However, it does not necessarily follow that all the minute details about the general interpretative method then also apply to the Constitution. Article 2(9) only incorporates the rules that are present in the Interpretation Act, and not the common law. In particular, section 9A only provides that:

1. An interpretation promoting the purpose underlying the written law shall be preferred to an interpretation that does not.
2. In finding this interpretation, certain types of extraneous material may be used. They must be capable of ascertaining the meaning of the provision, and the Court must consider the desirability of relying on the plain meaning and whether using this extraneous material would prolong proceedings.
3. The extraneous material can only be used to confirm the plain meaning, or to ascertain it if it is ambiguous, obscure, or leads to a result that is manifestly absurd or unreasonable.

Crucially, what section 9A does not provide for is how to approach the plain meaning of the text (eg, whether canons of interpretation apply, and if so, which canons apply), how to identify the purpose of the text and to square it with the plain meaning, and how to apply the extraneous material if admitted. The rules that have developed in relation to these aspects come from the common law, which are not incorporated into the Constitution (or do not limit the Constitution) by virtue of Article 2(9). A separate justification must be found for each of these rules not found within the Interpretation Act.

One example of such a principle not found in the Interpretation Act but which has been judicially developed is the principle of generous interpretation. This principle was first laid down in the Singapore context by the decision of the Privy Council (on appeal from Singapore) in Ong Ah Chuan,¹⁰ Ong Ah Chuan and another v PP [1979–1980] SLR(R) 710 (“Ong Ah Chuan”). that fundamental liberties “call for a generous interpretation” and the Court must avoid “the austerity of tabulated legalism” in doing so.¹¹ Tan Cheng Bock (HC) at [40]–[41]; Ong Ah Chuan at [23]. The reason for this appears to be that these rights are inalienable, fundamental liberties, not bargained rights;¹² Taw Cheng Kong v PP [1998] 1 SLR(R) 78 (“Taw Cheng Kong (HC)”) at [56]. they are enjoyed by “everyone”;¹³ Tan Cheng Bock (HC) at [43]. and therefore individuals must be able to enjoy a “full measure” of such liberties.¹⁴ Ong Ah Chuan at [23].

This approach — that the Constitution should be interpreted according to principles that suit the nature of the Constitution as the supreme law of the land — finds support in the cases prior to Tan Cheng Bock. In Ong Ah Chuan itself, the Privy Council noted, in setting out the principle of generous interpretation, that the Constitution should be interpreted “as sui generis, calling for principles of interpretation of its own, suitable to its character … without necessary acceptance of all the presumptions that are relevant to legislation of private law” [Emphasis added].¹⁵ Ong Ah Chuan at [23]. Of course, Ong Ah Chuan was decided prior to section 9A of the Interpretation Act, but section 9A would not change the analysis because it simply prevails over any judicially-developed principles of constitutional interpretation in the event of conflict; it does not tell us which judicially-developed principles to adopt in the first place. Similarly, the High Court in the subsequent case of Taw Cheng Kong noted that the Court, in interpreting the Constitution is “not limited by the normal rules and maxims applied to ordinary legislation”.¹⁶ Taw Cheng Kong (HC) at [18].Taw Cheng Kong went on appeal but the Court of Appeal did not comment on this observation.

Hence, Article 2(9) does not appear to be a complete basis for applying the common law rules on ordinary statutory interpretation to the Constitution. It only incorporates section 9A of the Interpretation Act. The better view may be that any other principles must be separately justified by reference to specific features of the Constitution, such as the principle of generous interpretation.

On the basis, we now turn to that principle of generous interpretation and whether it is truly as “settled” as the High Court in Tan Cheng Bock noted.

Is the Principle of Generous Interpretation Truly a “Settled Principle of Constitutional Interpretation”?

The brief manner which the High Court in Tan Cheng Bock introduced the principle of generous interpretation suggests that it is settled law. But a closer perusal of the cases may cast some doubt on this conclusion. While the Courts have never specifically disavowed the principle, they appear to have moved towards a principle that arguably stands opposed to the principle of generous interpretation — the presumption of constitutional validity of statutes and of regularity of executive action (collectively, the “presumption of legality”). This note therefore suggests that the Court in Tan Cheng Bock could have done more to clarify the status of the principle of generous interpretation and how it interacts with the presumption of legality.

To begin with, it was unclear until the High Court’s decision in Tan Cheng Bock whether the principle of generous interpretation still existed in Singapore law given the dearth of cases referring to it. The principle first appeared in the Singapore jurisprudence through the Privy Council decision (on appeal from Singapore) in Ong Ah Chuan. The Privy Council considered the issue of whether the statutory presumption under the relevant drugs legislation conflicted with Articles 9(1) and 12(1) of the Constitution. While the Privy Council noted that these articles in Part IV of the Constitution are much less detailed and expansive than their counterparts in India or the United States, the Court nevertheless concluded that Part IV rights must be given a generous interpretation to give individuals a “full measure” of these liberties.¹⁷ Ong Ah Chuan at [23]. While on the facts the drugs legislation did not impinge upon even a generous reading of the liberties, the main takeaway is that a ‘thick’ and not ‘thin’ conception of these rights would have to be adopted. For instance, the Privy Council rejected the PP’s argument that ‘law’ in Articles 9(1) and 12(1) referred literally to the written law, such that as long as legislation was validly passed, it could restrict those liberties. Rather, ‘law’ would also refer to fundamental rules of natural justice such as the presumption of innocence.¹⁸ Ong Ah Chuan at [24] and [26].

After Ong Ah Chuan, the principle appears to have only been cited twice prior to Tan Cheng Bock: by the Court of Appeal in Chng Suan Tze v Minister for Home Affairs and Others and Other Appeals¹⁹ [1988] 2 SLR(R) 525 (“Chng Suan Tze”). in finding that an objective rather than a subjective test applies under the Internal Security Act;²⁰ Chng Suan Tze at [80]. and by the High Court in Taw Cheng Kong in finding that the extra-territorial clause in the Prevention of Corruption Act was ultra vires Article 12(1) of the Constitution.²¹ Taw Cheng Kong (HC) at [20].

Taw Cheng Kong (HC) was the last time the principle was cited prior to Tan Cheng Bock and it did not pass without controversy. The High Court cited Ong Ah Chuan for the principle of generous interpretation and then said that the Court should be diligent to protect fundamental liberties notwithstanding a ‘strong’ presumption of constitutionality.²² Taw Cheng Kong (HC) at [20] and [22]. When the matter came before the Court of Appeal, however, the High Court decision was reversed on the basis that the High Court failed to give effect to the presumption of constitutionality.²³ Taw Cheng Kong (CA) at [77]. The principle of generous interpretation was not cited despite the challenge being under Article 12(1), a Part IV fundamental liberty. Arguably, the Court of Appeal’s silence on the principle of generous interpretation signalled its death, after which it was replaced by the strong presumption of constitutional validity.

In this light, it is questionable whether the principle survived the Court of Appeal’s decision in Taw Cheng Kong. The High Court in Tan Cheng Bock could arguably have clarified how it concluded that the principle was a “settled” one in Singapore law, especially since all the jurisprudence cited by the Plaintiff were foreign cases.²⁴ Tan Cheng Bock (HC) at [40].

This question mark over the principle of generous interpretation is amplified as the Courts have filled the conspicuous silence on the principle with a new principle: the presumption of legality.

The Court of Appeal in Taw Cheng Kong was not the first to apply the presumption of legality, but it was the first to explain, endorse, and apply it post-Ong Ah Chuan. The Court of Appeal noted that there is a “strong presumption of constitutional validity”, and that it would be given effect to by supporting the legislation “if it is possible to do so on any reasonable ground” [Emphasis added].²⁵ Taw Cheng Kong (CA) at [60]. For this proposition the Court cited a Malaysian case, PP v Su Liang Yu²⁶ [1976] 2 MLJ 128. and a Singapore Court of Appeal case, Lee Keng Guan and Others v PP,²⁷ [1977–1978] SLR(R) 78. both of which pre-dated Ong Ah Chuan. The Court of Appeal did not explain how they interacted with the principle of generous interpretation.

This presumption of legality was subsequently noted in similarly strong terms in cases such as Chee Siok Chin and others v Minister for Home Affairs and another, where the High Court stated that the presumption of constitutional validity “will not be lightly displaced” and that a “generous and not a pedantic interpretation” should be given — but this time to the legislature and not to fundamental rights.²⁸ [2006] 1 SLR(R) 582 at [49]. More recently, the Court of Appeal in Lim Meng Suang and another v AG and Another Appeal and Another Matter also noted that the Court would not “lightly” find a statute or its provisions unconstitutional.²⁹ [2015] 1 SLR 26 at [4].

Although this principle began in the context of the legislature, it quickly found its way to the executive. In Ramalingam Ravinthran v AG,³⁰ [2012] 2 SLR 49 (Ramalingam). the applicant challenged the PP’s prosecutorial discretion in bringing a charge under the Misuse of Drugs Act as violating Article 12 of the Constitution. The Court of Appeal noted that in view of the AG’s constitutional office, the Court would presume that the AG’s decisions were regular unless shown otherwise; and that this principle applied not only to those who enjoy constitutional office but those who do not, such as the Chief Assessor.³¹ Ramalingam at [46]–[47]. It is unclear how the Court of Appeal arrived at the second half of that conclusion given that the justification for the presumption was the AG’s constitutional office, but with Ramalingam the presumption of legality had been brought to the executive — a presumption of regularity for all office-holders not just those with constitutional office.

This presumption of regularity was later taken up and applied by the Court of Appeal in cases like Lee Siew Boon Winston v PP,³² [2015] SGCA 67. which concerned the PP’s disclosure obligations during trial, and Muhammad Ridzuan bin Mohd Ali v AG,³³ [2015] 5 SLR 1222. which concerned the PP’s discretion to give a certificate of substantive assistance under the drugs legislation. Unlike Ramalingam where the decision to bring or discontinue a charge was found in Article 35(8) of the Constitution, neither of these powers find their source in the Constitution.

As can be seen, the presumption of legality has seen some of the most explosive growth in recent jurisprudence. What is unclear is what exactly the presumption entails and how it interacts with the principle of generous interpretation noted in Tan Cheng Bock. By all accounts, the former has replaced the latter; hence the basis upon which the High Court in Tan Cheng Bock concluded that it was still a “settled” principle that it “endorse[d]” is unclear. This is especially so since the Court of Appeal did not express any view on this aspect of the High Court’s decision.

And even if the principle of generous interpretation does survive, there is the further question of how it interacts with the presumption of legality in cases where both could apply, which was also left unaddressed by Tan Cheng Bock.

Conclusion

Constitutional interpretation has developed in a piecemeal fashion over the years, with the cases only going so far as necessary to resolve the dispute in each case. This is unsurprising, since it is challenging to lay down comprehensive rules regarding how to interpret the supreme law of the land. The High Court and Court of Appeal decisions in Tan Cheng Bock have reaffirmed some of the conventional wisdom that has been accumulated from these cases. But this note suggests that perhaps not all rules pertaining to statutory interpretation should be grafted onto constitutional interpretation without separate justification. This note also suggests that one such rule — the principle of generous interpretation — appears to have all but disappeared in the recent jurisprudence, and the High Court’s proclamation that it is still a “settled” principle may not have sufficiently clarified its status.

 

The views in this article are the author’s own and do not represent the views of his employer.