Tan Cheng Bock v Attorney -General [2017] SGHC 160

Introduction

The Plaintiff, Dr Tan Cheng Bock, seeks a declaration that:

(a) s 22 of the Presidential Elections (Amendment) Act 2017 (Act 6 of 2017) (“the PE(A) Act 2017”) is inconsistent with Arts 19B(1) and/or 164(1)(a) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”), and therefore void by virtue of Art 4 of the Constitution; alternatively,

(b) the reference to President Wee Kim Wee (“President Wee”) in the Schedule referred to in s 22 of the PE(A) Act 2017 is inconsistent with Arts 19B(1) and/or 164(1)(a) of the Constitution, and therefore void by virtue of Art 4 of the Constitution.

The Plaintiff, represented by Mr Chelva Retnam Rajah SC (“Mr Rajah SC”), contends that Art 19B(1), properly interpreted in context and having regard to its purpose, means that the first Presidential term to be counted for the purpose of determining a reserved election under Art 19B(1) (“Reserved Election”) (ie, a Presidential election reserved only for candidates from a particular community) must be that of a President who was elected by the citizens of Singapore to a six-year term of office. The Schedule to the Presidential Elections Act (Cap 240A, 2011 Rev Ed) (“PEA”), as enacted by s 22 of the PE(A) Act 2017, is unlawful and invalid because it starts the count for a Reserved Election from President Wee, who was elected by Parliament and not by popular vote of the citizens.

The Attorney-General (“the AG”), represented by Deputy Attorney-General Mr Hri Kumar Nair SC (“Mr Nair SC”), contends otherwise and resists the grant of the declaration sought.

The parties are in agreement that the issue to be decided is a question of law, viz, whether Parliament acted constitutionally in specifying the last term of office of President Wee as “the first term of office of the President to be counted for the purposes of deciding whether an election is reserved under Art 19B” (“First Term”) (Art 164(1)(a)).

The issue of standing

The Plaintiff brings this action under O 15 r 16 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed). To seek such declaratory relief, the Plaintiff must show that he has the requisite standing to do so. In Tan Eng Hong v Attorney-General [2012] 4 SLR 476 (“Tan”), which was approved of in the subsequent cases of Vellama d/o Marie Muthu v Attorney-General [2013] 4 SLR 1 (at [16]) and Jeyaretnam Kenneth Andrew v Attorney-General [2014] 1 SLR 345 (at [46]), the Court of Appeal (“the CA”) recognised at [115] that an applicant will have standing to bring a constitutional challenge if the following three requirements are satisfied:

(a) the applicant has a real interest in bringing the action;

(b) there is a real controversy between the parties to the action for the court to resolve; and

(c) there is a violation of a personal right.

In respect of requirement (c), an applicant need only show an “actual or arguable violation” of a personal right (see Tan at [73]).

The Defendant is prepared to accept that the Plaintiff has standing to seek this declaration. During the hearing on 29 June 2017, neither party made submissions on the Plaintiff’s standing before me.

In the likely event that this is taken up elsewhere, I should express my views on standing. On the assumption that the Plaintiff meets the eligibility criteria and other requirements for standing for the office of President under the Constitution and the PEA, which are not issues before me or within my purview, I am prepared to accept that the Plaintiff has standing to bring this action for the following reasons:

(a) First, the Plaintiff, who is a medical doctor by profession and a former Member of Parliament (“MP”) for some 26 years, ran in the 2011 Presidential Election. The Plaintiff garnered a very credible number of votes with the current President succeeding only by a narrow margin in 2011. The Plaintiff, who is about 77 years old today, publicly announced his intention on 11 March 2016 to stand in the next Presidential Election. It is not disputed that at the time of this application, the Plaintiff still wishes to stand as a candidate in the Presidential Election slated for September this year (“the 2017 Presidential Election”).

(b) Secondly, if the amendments which the PE(A) Act 2017 effected to the PEA are valid, they will prevent the Plaintiff from standing as a candidate in the 2017 Presidential Election as it will be a Reserved Election for the Malay community: see ss 9(4)(c) and 9(5) of the PEA.

(c) Thirdly, the Plaintiff has put forward serious arguments challenging the start of the count, for the purpose of the hiatus-triggered mechanism for a Reserved Election (“the Model”) under Art 19B(1), from the second term of office of President Wee who, as mentioned above, was elected by Parliament and not by popular vote of the citizens. If, as the Plaintiff contends, the count could only start from the first popularly elected President, ie, President Ong Teng Cheong (“President Ong”), then the 2017 Presidential Election cannot be a Reserved Election under the Constitution as it stands today. The Plaintiff will then be able, on the assumption made above, to be nominated as a candidate for the office of President.

For these reasons, I am prepared to accept that the Plaintiff satisfies the elements of standing which the CA reaffirmed in Tan.

The background

The origins of the Presidency

When Singapore gained its independence from the United Kingdom on 16 September 1963, it did so as a state within the Federation of Malaysia. Singapore’s Head of State was then called the Yang di-Pertuan Negara. This office was created by the Singapore (Constitution) Order in Council 1958 (GN No S 293/1958), which also abolished the equivalent colonial office of the Governor and Commander-in-Chief of the Colony. Encik Yusof bin Ishak, who was the Yang di-Pertuan Negara on 16 September 1963, continued as the Head of State of Singapore in Malaysia under Art 1(1) of the State Constitution set out in Sched 3 to the Sabah, Sarawak and Singapore (State Constitutions) Order in Council 1963 (GN Sp No S 1/1963) (“the 1963 State Constitution”) which preserved the office of the Yang di-Pertuan Negara. He was formally appointed as the Yang di-Pertuan Negara under the 1963 State Constitution on 4 December 1963: see Singapore Parliamentary Debates, Official Report (30 November 1967) vol 26 at col 407 (Lee Kuan Yew, The Prime Minister).

When Singapore became an independent nation on 9 August 1965, the Head of the Federation of Malaysia, the Yang di-Pertuan Agong, relinquished his sovereignty, jurisdiction, power and authority over Singapore; and this was vested in our Yang di-Pertuan Negara (see s 6 of the Constitution and Malaysia (Singapore Amendment) Act 1965 (Act 53 of 1965) (M’sia), which was passed by the Malaysian Parliament, and s 3 of the Republic of Singapore Independence Act (Act 9 of 1965), which was passed by our Parliament). On 22 December 1965, Parliament passed the Constitution (Amendment) Act 1965 (Act 8 of 1965) (“the 1965 Amendment Act”) which was given retrospective effect from 9 August 1965. The 1965 Amendment Act contained the following relevant provisions:

(a) s 2(1)(a) changed the title of the Yang di-Pertuan Negara of Singapore to that of the President of Singapore;

(b) s 3 repealed Art 1 of the 1963 State Constitution, which had provided for the office of the Yang di-Pertuan Negara (see [8] above), and inserted a new Art 1 in its place. The new Art 1(1) provided for a President of Singapore to be elected by Parliament. Under Art 1(3), the President was to hold office for a term of four years; and

(c) s 9 stated that the person holding the office of Yang di-Pertuan Negara on 9 August 1965, viz, Encik Yusof bin Ishak, was deemed to be the President of Singapore as if he were duly elected by Parliament and entered upon his office on 4 December 1963.

Encik Yusof bin Ishak became the first President of independent Singapore under s 9 of the 1965 Amendment Act. Thereafter, Parliament re-elected Encik Yusof bin Ishak and elected the next three Presidents:

(a) Upon the expiry of Encik Yusof bin Ishak’s first term in office, he was re-elected as President by Parliament on 4 December 1967. However, he passed away in office on 23 November 1970 before he could complete his second term.

(b) Dr Benjamin Sheares was elected by Parliament as our second President on 30 December 1970, and assumed office on 2 January 1971. He was re-elected by Parliament for a second and then third term of office; but unfortunately, he too passed away in office on 12 May 1981.

(c) Mr Devan Nair succeeded Dr Benjamin Sheares as our third President on 23 October 1981. He resigned on 28 March 1985, some months before his term expired, due to health reasons.

(d) Dr Wee Kim Wee became our fourth President on 30 August 1985. He served a total of two terms and retired on 31 August 1993.

It should not escape anyone’s notice that our first four Presidents were each of a different race. Encik Yusof bin Ishak was Malay, Dr Benjamin Sheares was Eurasian, Mr Devan Nair was Indian and Dr Wee Kim Wee was Chinese. This was no accident. In an interview in 1999, the then Senior Minister Mr Lee Kuan Yew referred to “the convention of rotating the Presidency among the races … to remind Singaporeans that their country was multi-racial”: see Zuraidah Ibrahim and Irene Ng, “Good to rotate EP among races”, The Straits Times (11 August 1999) at p 27.

The role of the first few Presidents, elected by Parliament, was largely ceremonial and symbolic. Thus, one MP described the President as “a symbol of the dignity and honour of our people … a symbol of the unity and the values of our Republic”: see Singapore Parliamentary Debates, Official Report (30 December 1970) vol 30 at col 380 (Ch’ng Jit Koon). Another MP spoke of the President as “the living depository of all things Singaporean”: see Singapore Parliamentary Debates, Official Report (23 October 1981) vol 41 at col 240 (Ho See Beng). The President’s role was thus in line with the nature of the British monarch, whom Bagehot famously described as “at the head of the dignified part of the constitution”: see Walter Bagehot, The English Constitution (Cambridge University Press, 2001) at p 9.

In keeping with the ceremonial and symbolic nature of the Presidency, the President’s powers were largely non-discretionary and to be exercised only in accordance with the advice of the Cabinet or a Minister acting under its authority: Art 21(1) of the Constitution of the Republic of Singapore (1980 Reprint) (“the Constitution (1980 Reprint)”). These powers were as follows (see the Report of the Constitutional Commission 2016 (“the 2016 Commission”) (17 August 2016) (“the Report”) at para 2.10):

(a) to appoint the Prime Minister (“the PM”) – an MP who, in the President’s judgment, was likely to command the confidence of the majority of the MPs (Art 21(2)(a) read with Art 25(1) of the Constitution (1980 Reprint));

(b) to withhold consent to a request for a dissolution of Parliament (Art 21(2)(b) of the Constitution (1980 Reprint));

(c) to remove the PM, if the President was satisfied that the PM had ceased to command the confidence of a majority of the MPs (Art 26(1)(b) of the Constitution (1980 Reprint)); and

(d) to dissolve Parliament, if the PM’s office was vacant, and the President was satisfied that a reasonable time had passed since the office had been vacated and no MP was likely to command the confidence of a majority of the MPs (Art 65(2) of the Constitution (1980 Reprint)).

The creation of the Elected Presidency

The first paradigm shift in the Presidency to a popularly elected President with certain custodial powers was first mooted by the then PM Mr Lee Kuan Yew, in his National Day Rally speech in 1984. In that speech, he set out a vision of the President being empowered to stop the government of the day from spending Singapore’s accumulated financial reserves. He further explained that, to do so, the President would have to be elected, for only then would one have the authority to veto the government.

On 29 July 1988, the then First Deputy PM, Mr Goh Chok Tong, presented a White Paper in Parliament (Constitutional Amendments to Safeguard Financial Assets and the Integrity of the Public Services (Cmd 10 of 1988, 29 July 1988) (“the 1988 White Paper”)). This described proposals to amend the Constitution to provide for an elected President and Vice-President. The 1988 White Paper made the following main proposals:

(a) The President would have “custodial powers” in two areas:

(i) the spending and disposal of assets and reserves which the government of the day had not accumulated; and

(ii) key appointments to the public service and specified statutory boards and government-linked companies.

The President would hold the second key in a “two-key safeguard mechanism”. While the government retained the sole prerogative to initiate policy, it would require the President’s concurrence for decisions in these two fields.

(b) The President and Vice-President would be elected by the citizens of Singapore for a term of six years. The Vice-President would assist the President, and assume the latter’s functions if he or she was unable to perform them.

(c) A Presidential Committee for the Protection of Reserves would be established to advise the President in the exercise of his reserve powers with regard to finances and assets.

(d) The President and Vice-President would be required to possess the necessary experience and qualities. An impartial body would assess and determine whether Presidential candidates were properly qualified.

Parliament debated these proposals on 11 and 12 August 1988. It then resolved to support the principles in the 1988 White Paper as the basis for a Bill for an elected President: see Singapore Parliamentary Debates, Official Report (12 August 1988) vol 51 at col 638.

Two years later, on 27 August 1990, a second White Paper (Safeguarding Financial Assets and the Integrity of the Public Services (Cmd 11 of 1990, 27 August 1990) (“the 1990 White Paper”)) was presented to Parliament. The 1990 White Paper broadly reaffirmed the scheme outlined in the 1988 White Paper. But it differed from its predecessor in the following key respects:

(a) The 1990 White Paper proposed that the President would have three further safeguard roles, beyond protecting Singapore’s assets and public service. These related to:

(i) the detention of persons under the Internal Security Act (Cap 143, 1985 Rev Ed);

(ii) the issuing of restraining orders under the then-proposed Maintenance of Religious Harmony Act (Act 26 of 1990); and

(iii) investigations into complaints of corruption involving a Minister by the Corrupt Practices Investigation Bureau.

(b) There would be no Vice-President.

(c) A Council of Presidential Advisers (“the CPA”) would be created instead of the previously proposed Presidential Committee for the Protection of Reserves (see [15(c)] above). If the President vetoed a Supply or a Supplementary Supply Bill, against the advice of a majority of the CPA, the Government could override the veto by passing the Bill in Parliament again with a two-thirds majority.

The 1990 White Paper also proposed that a Presidential Elections Committee would be established to determine if a person had the requisite experience and qualifications to serve as the President.

On 30 August 1990, the Constitution of the Republic of Singapore (Amendment No 3) Bill (Bill 23 of 1990) (“the 1990 Bill”) was read in Parliament for the first time. Parliament debated the 1990 Bill on 4 and 5 October 1990; and, upon its Second Reading, it was committed to a Select Committee. The Select Committee’s report was presented to Parliament on 18 December 1990: see Report of the Select Committee on the Constitution of the Republic of Singapore (Amendment No 3) Bill (Bill No 23/90) (Parl 9 of 1990, 18 December 1990).

On 3 January 1991, Parliament passed the Constitution of the Republic of Singapore (Amendment) Act 1991 (Act 5 of 1991) (“the 1991 Act”). The 1991 Act, which largely came into effect on 30 November 1991, created the institution of the Elected Presidency, and vested the office with the custodial powers which the 1988 and 1990 White Papers had envisaged. This 1991 Act effected what has been described as “the biggest constitutional and political change in Singapore’s modern era”: see Managing Political Change in Singapore: The Elected Presidency (Kevin Tan and Lam Peng Er eds) (Routledge, 1997) at p i.

Notably, this paradigm change was made while President Wee, a President elected by Parliament, was in his second term of office (which only expired on 31 August 1993). Before the 1991 Act came into effect, President Wee’s discretionary constitutional powers had been, essentially, the limited powers set out at [13] above.

It is therefore of some importance to note that, by s 26 of the 1991 Act, Parliament provided that President Wee would continue to hold the office of President for the rest of his term. Again, by s 26, Parliament vested President Wee with all the functions, powers and duties conferred or imposed upon his office by the 1991 Act, as if he had been elected by the electorate to the office of President. This transitional provision is now contained in Art 163 of the Constitution, which provides as follows:

From a historical perspective, it is notable that Art 163 is akin to s 9 of the 1965 Amendment Act (see [9(c)] above). That provision had deemed Encik Yusof bin Ishak, who had held the office of Yang di-Pertuan Negara on 9 August 1965, to be the President of Singapore as if he had been duly elected by Parliament.

The Presidents who succeeded President Wee were all elected by the citizens of Singapore to the Presidency. They were:

(a) President Ong, who served one term from 1 September 1993 to 31 August 1999;

(b) President S R Nathan, who served two terms, from 1 September 1999 to 31 August 2011; and

(c) President Tony Tan Keng Yam, who became President on 1 September 2011 and whose term of office expires on 31 August 2017.

The reshaping of the Elected Presidency

From 1994 to 2015, Parliament made several constitutional amendments which refined the institution of the Elected Presidency in incremental steps. For example, in 1996, Parliament was empowered to override the President’s veto if the latter acted against the CPA’s advice in refusing to make or revoke a key appointment: see ss 5–7 of the Constitution of the Republic of Singapore (Amendment) Act 1996 (Act 41 of 1996). These developments tweaked and recalibrated the Elected Presidency, but they did not radically transform it.

However, on 27 January 2016, PM Lee Hsien Loong indicated that the time had come for more sweeping change to the Elected Presidency. In the course of a wide-ranging speech in Parliament, the PM announced that he would be appointing a Constitutional Commission to study and recommend changes to three aspects of the Elected Presidency. These were:

(a) the qualifying criteria for Presidential candidates,

(b) the representation of minority races in the Presidency, and

(c) the role of the CPA.

On 10 February 2016, the PM appointed a Constitutional Commission chaired by the Chief Justice. On 17 August 2016, the Chief Justice, as Chairman of the 2016 Commission, submitted its Report to the PM.

On 15 September 2016, the Government issued a White Paper (Review of Specific Aspects of the Elected Presidency (15 September 2016) (“the 2016 White Paper”)) in response to the Commission’s recommendations.

On 10 October 2016, the Constitution of the Republic of Singapore (Amendment) Bill (Bill 28 of 2016) (“the 2016 Bill”) was read in Parliament for the first time. Parliament debated the 2016 Bill from 7 to 9 November 2016.

The second paradigm shift in the office of the President of Singapore followed upon the Second and Third Readings of the Bill on 9 November 2016, with the passage of the Constitution of the Republic of Singapore (Amendment) Act 2016 (Act 28 of 2016) (“the 2016 Act”).

The 2016 Act, which came into effect on 1 April 2017, made the following three important changes to the Presidency:

(a) The Act introduced the concept of a Reserved Election, viz, a Presidential election in which only candidates from a specified community would qualify to be elected as President.

(b) The Act updated the criteria for Presidential candidates from the private sector, to require such candidates to have held the position of chief executive in a company with shareholders’ equity of at least $500m.

(c) The Act provided for two additional members to be appointed to the CPA, and for the President to consult the CPA before exercising his discretion regarding all fiscal matters concerning Singapore’s reserves and all matters relating to key public service appointments.

On 9 January 2017, the Presidential Elections (Amendment) Bill (Bill 2 of 2017) (“the 2017 Bill”) was read in Parliament for the first time. Parliament debated the 2017 Bill on 6 February 2017. During the debate, the Minister in the Prime Minister’s Office, Mr Chan Chun Sing, announced that the Government would issue the writ for the next Presidential election, which would be a Reserved Election for Malay candidates, in late August 2017, such that, if the election is contested, polling day will fall in September 2017: see Singapore Parliamentary Debates, Official Report (6 February 2017) vol 94 (Mr Chan Chun Sing, the Minister, Prime Minister’s Office). The Second and Third Reading of the Bill then proceeded on 6 February 2017, whereupon the PE(A) Act 2017 was passed. The Act amended the PEA with effect from 1 April 2017.

The parties’ cases

The parties agree on the following:

(a) Parliament inserted the Schedule to the PEA, by enacting s 22 of the PE(A) Act 2017, in the exercise of its power under Art 164, to specify the First Term (see [4] above).

(b) Articles 19B and 164 must be purposively interpreted, ie, interpreted in a way which promotes their purpose.

The parties’ arguments proceed from this common ground.

The Plaintiff’s case is as follows:

(a) Parliament’s power under Art 164 to choose the First Term is limited by Art 19B(1) for two reasons. First, under Art 164, Parliament must specify the First Term “by law”: Parliament must thus exercise that power in accordance with Art 19B(1), the “governing constitutional provision”. Secondly, as Mr Rajah SC submitted at the hearing before me, “Art 164 is a transitional provision to implement Art 19B(1)”: the discretion under the former is thus subject to the latter.

(b) The purpose of Art 19B(1) is clear from its language and its textual context. Its purpose is “to provide for a Reserved Election if, but only if, the electoral process has failed to produce elected Presidents from all relevant communities”. Applying the principle of purposive interpretation, the phrase “5 most recent terms of office of the President” in Art 19B(1) refers to the five most recent terms of office of Presidents who were elected to their office by the citizens of Singapore.

(c) The Report, the 2016 White Paper and the Parliamentary debates on the 2016 Bill (“the Parliamentary Debates”) confirm the purpose of Art 19B(1). These materials show that Art 19B(1) sought to address “the potential failure of open elections to produce community diversity in the occupants of the office of President”. Counting President Wee’s second term as the First Term would fail to ensure “a close correlation between the mischief and the remedy”, because President Wee was elected by Parliament and not in an open election by the citizens.

(d) While the PM had stated, during the Parliamentary Debates, that the Government intended to specify President Wee’s second term of office as the First Term, the Government had made this choice based on the AG’s advice. In the light of the points summarised at [(b)] and [(c)] above, the AG’s advice was wrong. Little weight should therefore be placed on the PM’s statement.

In written submissions, the Plaintiff also made the following argument (“the Fundamental Rights Argument”):

(a) Art 19B(1) encroaches on the rights of persons who are not from the community for which the Reserved Election is reserved (“the Reserved Community”) to stand for election to the Presidency.

(b) The right to stand for election, or to participate in the presidential election process, is a fundamental right. Such rights should be given a “generous interpretation”; and restrictions on them must be “narrowly interpreted”, especially when based on ethnicity.

(c) Therefore, the Court should be slow to interpret Art 19B(1) in a way which “accelerates” a Reserved Election, for this will result in an earlier encroachment of the right of persons who are not from the Reserved Community to stand for election to the Presidency.

However, I note that the Plaintiff did not raise this argument in oral submissions.

The Defendant’s case is as follows:

(a) The language of Art 164 reveals that its purpose was to give Parliament the “full discretion” to specify any term of office of the President as the First Term. The textual context of Art 164, including (in particular) Art 19B, confirms that this is the purpose of Art 164.

(b) The Parliamentary Debates demonstrate that, in passing the 2016 Act, Parliament knew and intended that President Wee’s second term would be specified as the First Term. The Court must give effect to this clear and specific intention of Parliament. Moreover, the AG’s advice to the Government regarding this issue was irrelevant.

(c) The Report, the White Paper, the Parliamentary Debates and the Explanatory Statement for the 2016 Bill (“the Explanatory Statement”) confirm that Parliament was intended to have full discretion in choosing the First Term.

The parties’ arguments were also joined over a narrow, technical point. The Plaintiff’s first prayer in this originating summons (“OS”) is for a declaration that s 22 of the PE(A) Act 2017 is unconstitutional. However, the Defendant submits that the proper object of challenge is the Schedule to the PEA, and not any provision of the PE(A) Act 2017, because the latter was rendered spent on 1 April 2017 when it was brought into operation. I will deal with this technical point after giving my decision on the substance of this action.

My decision

The law

As noted at [4] above, the issue in this case is whether Art 164 gives Parliament the power to specify President Wee’s second term of office as the First Term, and thus render the 2017 Presidential Elections a Reserved Election for the Malay community, or whether Parliament is restricted to specifying the term of office of a President who had been (or will be) elected by the citizens for a six-year term.

Purposive interpretation

It is trite, and is common ground in this case (see [30(b)] above), that a court must adopt a purposive approach in interpreting the Constitution. Article 2(9) of the Constitution provides that the Interpretation Act (Cap 1, 2002 Rev Ed) (“the Interpretation Act”) “shall apply for the purpose of interpreting this Constitution”. Section 9A(1) of the Interpretation Act requires a court to prefer an interpretation of a provision of a written law which promotes the purpose or object underlying the same to one which does not promote that purpose or object. The purposive approach is mandatory; furthermore, it takes precedence over all common law principles of statutory interpretation: see Dorsey James Michael v World Sport Group Pte Ltd [2013] 3 SLR 354 at [18]. It follows that a court must interpret the Constitution “to give effect to the intent and will of Parliament”: see Constitutional Reference No 1 of 1995 [1995] 1 SLR(R) 803 at [44].

In the quest for the legislative purpose of a provision, the first port of call is the text of the provision to be interpreted and its textual context, ie, the written law in which the provision is found. In the recent case of Attorney-General v Ting Choon Meng and another appeal [2017] 1 SLR 373 (“Ting”), both the majority and the minority in the CA started their analysis with the text of the provision before them, namely s 15 of the Protection from Harassment Act (Cap 256A, 2015 Rev Ed) (“the POHA”) and its textual context, in particular the long title to the POHA, before reviewing the relevant Parliamentary debates: see Ting at [15]–[16] and [73]–[90]. In this case, similarly, both the Plaintiff’s and the Defendant’s cases began from the wording of Arts 19B and 164 and their textual context, ie, other provisions in the Constitution. This starting point is appropriate for two reasons:

(a) First, if a provision is well-drafted, its purpose will emanate from the words in which it is formed: see Public Prosecutor v Low Kok Heng [2007] 4 SLR(R) 183 at [51], per V K Rajah JA, and Ting at [57], per Sundaresh Menon CJ (“Menon CJ”).

(b) Secondly, as this case aptly illustrates, the legislative purpose of a provision can be formulated in different ways. Depending on how the legislative purpose is cast, the purposive approach may result in varying and even conflicting interpretations of a provision: see Ting at [60], per Menon CJ. This difficulty may be resolved by reference to the wording of the provision and its textual context, which will often suggest how the legislative purpose should be framed. For example, in Public Prosecutor v Taw Cheng Kong [1998] 2 SLR(R) 489 at [63], the CA formulated the purpose of s 37(1) of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) (“the PCA”) after referring to the preamble to the Prevention of Corruption Ordinance 1960 (No 39 of 1960) (which is the same as the preamble to the PCA).

Having begun at the text of the provision and its written context, a court will often refer to materials which do not form part of the written law in which the provision is found (“extraneous materials”), if they can assist the court to ascertain the meaning of the provision: see s 9A(2) of the Interpretation Act.

In Ting, Menon CJ opined that, if the meaning of the provision is clear in view of its purpose as discerned from the written law, a court may only refer to extraneous materials to confirm that clear meaning: see Ting at [65] and [93]. A court cannot rely on extraneous materials to depart from that clear meaning. The majority in Ting did not expressly endorse or reject this proposition; and, as will become clear, it is unnecessary for me to say what their analysis implies because, whichever route is taken in the present case, we arrive, in my view, at the same conclusion.

The interpretation of fundamental rights

It will be convenient at this juncture to deal with the Plaintiff’s written submission which invokes the principle that fundamental rights should be generously interpreted and restrictions on such rights narrowly construed, especially where such restrictions are based on a person’s ethnicity (see [32(b)] above). The Plaintiff relies on four judgments of the Hong Kong Court of Final Appeal (“CFA”) – Ng Ka Ling (An Infant) & Anor v Director of Immigration [1999] 1 HKC 291 (“Ng”), Gurung Kesh Bahadur v Director of Immigration [2002] HKCU 909 (“Gurung”), Leung Kwok Hung and Others v HKSAR [2005] HKCU 887 (“Leung”) and Fok Chun Wa & Anor v Hospital Authority & Anor [2012] 2 HKC 413 (“Fok”) – as well as Lord Wilberforce’s celebrated dictum in Minister of Home Affairs and Another v Collins MacDonald Fisher and Another [1980] AC 319 (“Fisher”) at 328H that fundamental liberties “call for a generous interpretation avoiding … ‘the austerity of tabulated legalism’ …”.

In my judgment, the principle which the Plaintiff invokes does not apply here. In Ong Ah Chuan and another v Public Prosecutor [1979-1980] SLR(R) 710, Lord Diplock, delivering the judgment of the Privy Council, affirmed Lord Wilberforce’s dictum in Fisher and held that it applies to the fundamental rights in Part IV of the Constitution (at [23]). These are the fundamental liberties enshrined in Arts 9 to 16 of the Constitution providing, inter alia, for liberty of the person (Art 9), the prohibition of slavery and forced labour (Art 10), freedom of speech, assembly and association (Art 14) and the freedom of religion (Art 15). Whilst I endorse this settled principle of constitutional interpretation, the right to stand for election to the Presidency is not found in Part IV of the Constitution.

Moreover, I do not consider that the Hong Kong CFA widened the scope of the principle stated in Fisher, in the four cases relied on by the Plaintiff, by holding that it applies to rights which are not constitutionally enshrined. In his oral submissions, Mr Nair SC submitted that, in all these cases, the court was concerned with a fundamental right (recognised under the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (HK) (“the Basic Law”)). The Plaintiff’s counsel, Mr Rajah SC, did not dispute this. Having perused the cases, I agree with Mr Nair SC. Ng, Gurung, Leung and Fok pertained to the fundamental rights in Arts 24 (the right of abode – Ng), 25 (the right to equal treatment – Fok), 27 (the right of peaceful assembly – Leung) and 31 (the freedom to travel and to enter Hong Kong – Gurung) which are enshrined in Chapter III of the Basic Law, which is equivalent to Part IV of the Constitution. Accordingly, none of the four cases cited by the Plaintiff support his contention that the purported right to stand for election to the Presidency should be generously construed.

Furthermore, in my judgment, the right to stand for election to the Presidency is very different from the rights in Part IV of the Constitution. As noted above, the President is the Head of State with important custodial powers. He is also a symbol of the dignity and honour of our people, a symbol of the unity and values of our country (see [12] above). He is our face to the world. It is for these very reasons that Art 19 specifies stringent expertise and experience for a person to be elected as President, and provides in Art 19(1) that no person shall be elected as President unless he is qualified for election in accordance with the provisions of the Constitution. In this light, the right to stand for election to the Presidency is plainly different from the rights in Part IV of the Constitution because it is clear that not everyone can meet the qualifying conditions and requirements.

For the foregoing reasons, I do not accept the second premise of the Fundamental Rights Argument (see [32(b)] above) which therefore fails. Mr Rajah SC did not pursue this argument in his oral submissions.

Having set out the applicable principles of purposive interpretation above, I now turn to the interpretation of Art 164.

Article 164

Article 164 states:

The parties’ arguments

The Plaintiff’s case on Art 164 is, with respect, not quite clear from his written submissions. In some passages, he suggests that, under Art 164(1)(a), Parliament can only choose President Ong’s term of office as the First Term. However, in other passages, the Plaintiff appears to take a different position by contending that Art 164(1) confers a limited discretion on Parliament. In oral submissions, in answer to the obvious argument that if Art 19B(1) is clear that the count must start from President Ong, then there would be no need for Art 164(1)(a), Mr Rajah SC clarified the Plaintiff’s case by submitting that Parliament has the discretion under Art 164(1)(a) to delay the implementation of the Model but not to accelerate it. Parliament can thus choose President Ong’s term, or the term of office of any President after President Ong, as the First Term. But Parliament cannot specify the terms of office of the Presidents who preceded President Ong as the First Term. This is because Parliament must use its discretion under Art 164(1)(a) “by law”; Parliament’s discretion is therefore limited by Art 19B(1), the “governing constitutional provision”, which envisions that only the terms of office of popularly elected Presidents will count. Moreover, since the purpose of Art 164(1)(a) is to implement Art 19B(1), the discretion under the former must be exercised in accordance with the latter.

The Defendant disagrees and, in essence, makes the following submissions:

(a) The plain text of Art 164 does not limit Parliament’s discretion as to which term of office of the President it may specify as the First Term. This indicates that there is no such restriction, especially because Art 164(1)(b) contemplates that Parliament may look back in time, by specifying a term of office before the “appointed date”, ie, 1 April 2017, when the 2016 Act came into effect (see [29] above). If Parliament had intended, in passing the 2016 Act, to limit its discretion to look back in time in specifying the First Term, one would have expected Art 164 to expressly reflect such a restriction.

(b) The only restriction on Parliament’s discretion under Art 164 is that it must make its choice “by law”. The phrase “by law” requires that Parliament choose the First Term by enacting legislation, rather than by resolution. This requirement has been met, as Parliament specified the First Term by passing the PE(A) Act 2017.

In oral submissions, Mr Nair SC submitted that Art 19B(1) is not a “governing” provision in that Art 164 is “governed by” Art 19B(1). But he accepted that Art 164 must be read consistently with Art 19B and submitted that the “real issue is whether Art 164 is fettered by Art 19B”.

My decision

On a plain reading of Art 164, I draw the following conclusions from its text.

First, Art 164(1)(a) is both a duty-imposing and a power-conferring rule. It expressly imposes a duty on Parliament to specify the First Term and implicitly gives Parliament the power to do so.

Secondly, as Mr Rajah SC acknowledged (see [47] above), Parliament’s power under Art 164(1)(a) is not limited to choosing a particular Presidential term of office as the First Term. This is clear from the text in three ways.

(a) Article 164(1)(a) imposes a duty on Parliament to specify the First Term. The text clearly does not stipulate or indicate which President’s term that First Term should be.

(b) On the contrary, the very fact that a duty is imposed on Parliament to specify the term from which the count is to be made, to determine if an election is to be a Reserved Election, means that Art 19B does not determine which President’s term that First Term should be. Art 164(1)(a) therefore provides that it is for Parliament to stipulate that important First Term from which the count is to be made.

(c) The word “if” in Art 164(1)(b) shows that Parliament has a choice whether the First Term shall be a term of office of a President which commenced before the appointed date, ie, 1 April 2017. There is no limitation in Art 164 on how far back Parliament can go.

Thirdly, I agree with the Plaintiff that Parliament must exercise its power under Art 164(1)(a) in accordance with Art 19B(1). In my judgment, both provisions should, where possible, be interpreted consistently and in harmony with each other. However, if there is an inconsistency, Art 19B should prevail. (Mr Nair SC implicitly conceded this point, by submitting that the real issue is whether Art 19B fetters Art 164 (see [48] above); for this submission presupposes that, in principle, Art 19B could fetter Parliament’s discretion under Art 164(1)(a).) This is because, on a plain reading of Art 164, its purpose is to enable Parliament to implement the Model which Art 19B provides for:

(a) Art 164(1)(a) indicates that the power under it must be exercised “for the purposes of deciding whether an election is reserved under Article 19B”;

(b) The heading of Art 164 (“Transitional provisions for Article 19B” [emphasis added]) (see [46] above) is consistent with the text of Art 164(1)(a) in indicating that Art 164 was intended to implement the Model. (I note that the heading of a provision, formerly known as the marginal note or the side-note, can be used as an aid to interpretation: see Tee Soon Kay v Attorney-General [2007] 3 SLR(R) 133 at [36]–[41]).

Before turning to Art 19B, I should deal with the Plaintiff’s submission (see [47] above) that Parliament must exercise its power under Art 164(1)(a) in accordance with Art 19B(1) on the basis that Art 164(1)(a) uses the phrase “by law”. In my judgment, with respect, that submission is incorrect. I agree with the Defendant that the phrase “by law” is used in contradistinction to “by resolution”, which is found in, eg, Art 19(7)(b) of the Constitution. (This provision concerns the minimum amount in shareholders’ equity of a company for its chief executive to qualify to be elected as President under the private sector service requirements in Art 19. It enables Parliament to increase the minimum amount by resolution.) Notably, Art 19B also uses the phrase “by law” in Art 19B(4) (see [55] below). In my judgment, this phrase is used consistently across Arts 19B and 164. Its function is to constrain the form and not the substance of Parliamentary action.

Having construed Art 164, I now turn to construe Art 19B to see if it has put any fetters on Parliament’s exercise of power under Art 164 and, in particular, whether its provisions show that only Presidents who have been (or will be) elected by the citizens of Singapore for six-year terms can be counted in ascertaining when an election is a Reserved Election.

Article 19B

Article 19B provides as follows:

The parties’ arguments

The crux of the Plaintiff’s case on the text of Art 19B, interpreted in the light of the other provisions of the Constitution, is as follows:

(a) Article 19B(1) refers to the “President”. But this only refers to Presidents who are elected by the citizens of Singapore because:

(i) Under Art 2 of the Constitution, the “President” is defined as the President “elected under this Constitution”. Article 2 states:

(ii) Article 17A(1) defines the phrase “elected under this Constitution” as “elected by the citizens of Singapore”:

(b) Article 19B(1) uses the phrase “terms of office”. Therefore, the only Presidents who fall within Art 19B(1) are those who were or are elected to serve for a term of six years, because Art 20(1) states:

For the reasons given in [(a)] and [(b)] above, the phrase “the 5 most recent terms of office of the President” in Art 19B(1) refers to the terms of office of Presidents whom the citizens of Singapore elected to the Presidency, to serve for terms of six years. However, President Wee was elected by Parliament, and not by the citizens of Singapore; also, both his terms of office were only four years long.

(c) The provisions surrounding Art 19B all concern the election of a President by poll. Given this context, Art 19B must also be interpreted to refer to a President who was elected by poll.

The Defendant’s case on the text of Art 19B is as follows:

(a) First, the wording of Art 19B(1) itself does not limit the ambit of the phrase “held the office of President for any of the 5 most recent terms of office of the President” (“the Phrase”) to exclude Presidents who are not elected by the citizens of Singapore.

(b) Secondly, Art 19B(3) and Art 19B(6) expressly define the scope of the Phrase. In particular, Art 19B(3) expressly excludes persons who exercise the President’s functions under covering arrangements from the ambit of the Phrase. That Art 19 does not contain any other restriction on the Phrase shows that Parliament did not intend any other restriction.

(c) Thirdly, Art 19B(1) uses the expression “held the office”. This same expression is also found in other provisions of the Constitution in relation to offices which are not popularly elected. In the light of those provisions, the expression “held the office” in Art 19B(1) does not refer to an office to which one must be popularly elected.

(d) Fourthly, while under the definition in Art 2 “President” refers to Presidents who are elected under the Constitution, all of Singapore’s Presidents were elected under the Constitution. The only difference is that Parliament elected President Wee and the Presidents before him.

My decision

For the reasons that follow, I find that the word “President” in the phrases “the office of President” and “for any of the 5 most recent terms of office of the President” in Art 19B(1) does not only refer to those Presidents elected by the citizens of Singapore for terms of six years. These phrases can also refer to the Presidents of Singapore who were elected by Parliament for four-year terms.

First, the plain language of the text in Art 19B(1) only refers to the person who holds the “office of President” without any words to draw a distinction between Presidents who were elected by Parliament, and those who were elected by the citizens. The very next phrase reinforces this by stipulating that we look at “the 5 most recent terms of office of the President” to determine whether the next election should be reserved for a person belonging to a particular community. Again the text draws no distinction between Presidents elected by Parliament and those elected by the citizens.

The Presidency, the highest office in our land, has only been held by seven distinguished persons in our history of some 52 years of independence. It cannot be gainsaid that this is common knowledge of which I can take judicial notice. Such common knowledge also includes the fact that our first four Presidents were elected by Parliament; and that, at the time Art 19B and Art 164 were introduced, Singapore only had three Presidents elected by the citizens, the last of whom is the current President.

Looking at the text of Art 19B in this light, it would have been very easy, if Parliament meant to draw a distinction, to do so with appropriate language. This is especially because Art 19B includes Art 19B(6) which sets out certain definitions for the purposes of Art 19B. Amongst other definitions, Art 19B(6) stipulates that, in Art 19B, “term of office” includes an uncompleted term of office. In my judgment, if Parliament had intended to exclude Presidents who were not popularly elected from the scope of the Model, it could easily have made its intention clear by stipulating accordingly in Art 19B(1) or Art 19B(6).

Secondly, where Parliament intended an exclusion for the purposes of Art 19B, it said so explicitly. Art 19B(3) specifically excludes those who exercise the President’s functions when the office is vacant (Art 22N) and when the President is under a temporary disability (Art 22O) from being considered as persons holding the office of President. Art 19B(3) reads:

This strongly reinforces the interpretation that the word “President” in Art 19B is not confined to Presidents who were or are popularly elected because, if it were, there would have been no need for Art 19B(3) because those persons who step in to exercise the President’s functions under Arts 22N and 22O are not popularly elected. (While the Speaker of Parliament may be a popularly elected person, he or she (if popularly elected) is elected as an MP. The Speaker is not popularly elected for the purpose of exercising the President’s functions.)

During oral reply submissions, Mr Rajah SC submitted that Art 19B(3) was a necessary “carve-out” because the persons who exercise the President’s functions under Arts 22N and 22O fall within the definition of “President” in Art 2 (see [56(a)(i)] above). With respect, I do not agree. Article 19B(3) starts with the phrase “[f]or the purposes of this Article” and goes on to make clear that a person who steps in under Arts 22N and 22O to exercise the functions of the President will not be considered to have “held the office of President”. In using the words “held the office of President”, Art 19B(3) mirrors the language of Art 19B(1). In this light, I find that Art 19B(3) does not alter the definition of “President” for the purposes of Art 19B(1). Art 19B(3) is necessary because the phrase “held the office of President” in Art 19B(1) would otherwise apply to persons who exercise the President’s functions under Arts 22N and 22O, notwithstanding that they are not popularly elected for the purpose of exercising those functions. Furthermore, Mr Rajah SC’s acknowledgement that persons exercising the President’s functions under Arts 22N and 22O would, but for this purported “carve-out”, fall within the definition of the “President”, is inconsistent with his position that the reference to “the President” in Art 19B(1) is limited to Presidents elected by the citizens of Singapore.

Thirdly, Mr Rajah SC submitted (see [56(a)] above) that Art 19B(1) only refers to a President who is popularly elected by the citizens because:

(a) Under Art 2, “President” is defined as meaning “the President of Singapore elected under this Constitution … ”; and

(b) Art 17A(1) provides that “[t]he President is to be elected by the citizens of Singapore …”.

I do not accept this argument for the following reasons:

(a) First, the definition in Art 2 only refers to a President who is “elected”. It does not expressly stipulate that the President must be elected by the citizens of Singapore. On its clear terms, it includes a President whether elected by Parliament or by the citizens of Singapore.

(b) Secondly, in my judgment, it is unsurprising that Art 17A only refers to a President “elected by the citizens of Singapore”. Art 17A sets out the position under our Constitution today. When Parliament enacted the predecessor to Art 17A, viz, Art 17(2), by s 4 of the 1991 Act, it necessarily had to repeal the superceded Art 17(1) of the Constitution (1980 Reprint) which provided for the President to be elected by Parliament. Similarly, it would not make sense for Art 17A to look backwards by referring to Presidents who were elected by Parliament. The Constitution is a document which reflects our prevailing constitutional arrangements at any given time. Therefore, in my judgment, that Art 17A does not refer to Presidents who were elected by Parliament does not indicate that the definition of President in Art 2 only applies to Presidents who were or are popularly elected.

(c) Thirdly, the definition in Art 2 was first included in the Constitution (1980 Reprint) and has not materially changed since then. The only change which appears to have been made to the definition in the Constitution (1980 Reprint) was the substitution of the phrase “appointed to exercise” with the word “exercising”, by s 2 of the 1991 Act. Under the Constitution (1980 Reprint), the phrase “elected under this Constitution” must have referred to Presidents elected by Parliament because, at that stage in our history, all our Presidents were elected by Parliament. The fact that Parliament retained the definition of President in Art 2 through the 1991 and 2017 constitutional amendments must be that the definition was of utility and valid because it would include Presidents elected by Parliament. Otherwise, all the Presidents before President Wee would no longer be Presidents “elected under this Constitution” nor would they deemed to be such since Parliament did not enact a savings provision equivalent to Art 163 (see [20] above) in respect of those Presidents. As the Defendant submits, this would mean that all their acts, including all the Acts of Parliament to which they assented, would fall away.

I therefore conclude that the phrase “this Constitution” in Art 2 does not mean the Constitution as it stands today. It must also include the Constitution as it stood in the past where the context requires it. Actions and decisions made in the past, under superceded provisions, remain valid unless revoked or amended or otherwise dealt with by the new amendments. Accordingly, all our Presidents were elected under “this Constitution”, as they were all elected by Parliament under the Constitution (as it then stood) or by the citizens after the Constitution was amended in 1991 (with the anomalous position of President Wee, whose terms of office straddled both the old and new regimes, and who was expressly covered by Art 163). I thus do not accept the Plaintiff’s submission (see [56(a)] above) that the word “President” in Art 19B(1) only refers to popularly elected Presidents.

Fourthly, I do not accept the Plaintiff’s contention that the phrase “term of office” in Art 19B(1) implies that a President must be elected to serve for a term of six years in order to fall within the scope of Art 19B(1) (see [56(b)] above). The Plaintiff’s argument here again relies on the assumption that the terms of Art 19B(1) – here, the phrase “terms of office” – must be defined by reference to the relevant provision in the Constitution today, ie, Art 20(1). For the reasons given in [65(b)] above, I do not accept this assumption. It would not make sense for Art 20(1) to refer to a term of four years, since that no longer reflects the position under our Constitution today.

I therefore conclude that, on the ordinary meaning of the plain text of Art 19B, read in the light of its textual context, the terms of office of any President of Singapore, whether elected by Parliament or by the citizens of Singapore, fall within the ambit of the Model which Art 19B establishes. Accordingly, there is nothing in Art 19B(1) limiting Parliament’s power under Art 164(1)(a) in requiring that the count can only start with a popularly elected President.

The Extraneous Materials

I now come to the use of extraneous material in interpreting Art 19B and Art 164 of the Constitution. Section 9A(3) of the Interpretation Act sets out the materials which may be considered by the court in this regard:

In Ting, Menon CJ made the following observations on s 9A(3) of the Interpretation Act at [63]:

Menon CJ thus held that a court may have regard to material which does not fall under s 9A(3) if such material sheds light on the objects and purposes of the statute or the relevant provision. While the CA did not reach a unanimous decision in Ting, I do not consider, nor do the parties contend, that the majority disagreed with Menon CJ’s opinion on this point.

The parties rely on the following extraneous materials in support of their interpretations of the purpose of Arts 19B and 164 (in no order of precedence):

(a) The Report (see [13] above);

(b) The 2016 White Paper (see [25] above).

(c) The official record of Parliamentary Debates (see [31(c)] above). In particular, the parties rely on excerpts of the following (see Singapore Parliamentary Debates, Official Report (7–9 November 2016) vol 94):

(i) The President’s message, read out by the Speaker of Parliament on 7 November 2016 (“the President’s Message”);

(ii) PM Lee Hsien Loong’s speech on 8 November 2016 (“PM Lee’s Speech”);

(iii) Deputy PM Teo Chee Hean’s speech on 7 November 2017 on the occasion of his moving of a motion for the Second Reading of the 2016 Bill (“DPM Teo’s Speech”);

(iv) Speeches by MPs during the Parliamentary Debates; and

(d) The Explanatory Statement (see [33(c)] above).

The extraneous material referred to in [70(c)] and [70(d)] above clearly fall within s 9A(3)(b) to (d) of the Interpretation Act. However, the Report and the 2016 White Paper (see [70(a)] and [70(b)] above) do not fall within the list in s 9A(3) of the Interpretation Act. Nonetheless, in my judgment, they shed light on the object and purposes of the 2016 Act and, specifically, on Arts 19B and 164 (see [69] above). I will thus consider them, where appropriate, as well.

In respect of the weight to be accorded to these extraneous materials, s 9A(4) of the Interpretation Act provides as follows:

In Ting, Menon CJ opined at [71(h)] that, in determining the weight to be placed on extraneous materials, the court should have regard to “the clarity of the material and whether the statement [in the material] is directed to the very point in dispute between the parties”. In relation to statements made in Parliament in particular, Menon CJ held as follows (at [70(a)]):

Again, I do not consider, nor do the parties contend, that the majority in Ting disagreed with Menon CJ’s opinion in this regard.

With this in mind, I turn to the parties’ submissions on the purpose and object of Arts 19B and 164 in the light of the extraneous materials in question.

The Plaintiff’s arguments

The Plaintiff relies on the following excerpts from the Parliamentary Debates to contend that the purpose of Art 19B was to address “the potential failure of open elections to produce community diversity in the occupants of the office of President” (see [31(c)] above):

(a) The President’s Message (see [70(c)(i)] above) stating, inter alia, the following:

(b) DPM Teo’s Speech (see [70(c)(iii)] above) stating, inter alia, the following:

(c) The following excerpts from speeches by MPs (see [70(c)(iv)] above):

(i) Ms Tin Pei Ling (MP for MacPherson) on 7 November 2016:

(ii) Mr Zaqy Mohamad (MP for Chua Chu Kang) on 8 November 2016:

(iii) Mr Yee Chia Hsing (MP for Chua Chu Kang) on 8 November 2016:

(iv) Ms Cheng Li Hui (MP for Tampines) on 9 November 2016:

(v) Ms Jessica Tan Soon Neo (MP for East Coast) on 9 November 2016:

(d) PM Lee’s Speech (see [70(c)(ii)] above) stating, inter alia, the following:

The Plaintiff also relies on the following excerpts from the Report and the 2016 White Paper (see [70(a)] and [70(b)] above):

(a) The Report:

(b) The 2016 White Paper:

The Plaintiff argues, from these extraneous materials, that the purpose of Art 19B is to address a specific mischief: the possibility that open elections may fail to ensure that candidates from minority races are elected to the President from time to time. Article 19B remedies this mischief, by providing for a Reserved Election if five consecutive Presidential elections fail to produce a President from a particular racial community. The Plaintiff submits that its interpretation of Art 19B ensures “a close correlation between the mischief and the remedy”, and that it would frustrate the purpose of Art 19B to specify President Wee’s second term of office as the First Term. Additionally, Art 164 must be interpreted in line with the purpose of Art 19B given that the former provision gives effect to the Model in the latter provision.

The Plaintiff also submits that little weight should be placed on PM Lee’s statement that the Government intended to specify President Wee’s second term as the First Term. The Government made this choice on the AG’s advice, which was wrong. Little weight should thus be placed on the PM’s statement, and other statements by MPs in response to the PM’s statement, for two reasons:

(a) First, the interpretation of Art 19B(1) cannot depend on the AG’s view on how that provision should be read. It is the court’s power and duty to say what Art 19B(1) means; and the court’s interpretation cannot depend on the AG’s view. To place weight on the PM’s statement would imply that what Art 19B(1) means depends on the AG’s view thereon.

(b) Secondly, Parliament passed the 2016 Act on the basis of a misunderstanding as to what Art 19B(1) means. Parliament thought, based on the AG’s advice, that President Wee’s second term could be the First Term under Art 19B(1). But this was a mistake. The fact that Parliament mistakenly believed Art 19B(1) means something does not preclude the court from holding that Art 19B(1) means something else.

The Defendant’s arguments

The Defendant’s case on the extraneous materials is as follows.

First, in terms of the Parliamentary Debates, they should be analysed as reflecting Parliament’s intention at two different levels of generality:

(a) Parliament clearly and specifically intended that President Wee’s second term would be specified as the First Term when it passed the 2016 Act. PM Lee announced the Government’s intention in this regard in his speech on 8 November 2016, as follows:

When Parliament passed the 2016 Act, it did so in full knowledge that the Government intended to specify President Wee’s second term as the First Term. In this regard, the Defendant relied on, inter alia, the following statements by MPs after PM Lee’s speech which celebrated or at least recognised that the next Presidential election would be a Reserved Election for a Malay President:

(i) Mr Zaqy Mohamad (MP for Chua Chu Kang) on 8 November 2016:

(ii) Mr Muhamad Faisal bin Abdul Manap (MP for Aljunied) on 8 November 2016:

(iii) Ms Sylvia Lim (MP for Aljunied) on 9 November 2016:

(iv) Assoc Prof Fatimah Lateef (MP for Marine Parade) on 9 November 2016:

(v) Mr Darryl David (MP for Ang Mo Kio) on 9 November 2016:

(vi) Ms Rahayu Mahzam (MP for Jurong) on 9 November 2016:

(vii) Mr Azmoon Ahmad (Nominated MP) on 9 November 2016:

Therefore, the Defendant submits, Parliament also intended, in passing the 2016 Act, that President Wee’s second term be specified as the First Term. In interpreting Arts 19B and 164, the court must give effect to this clear and specific intention of Parliament.

(b) More generally, Parliament intended to introduce the Model into the Constitution. The statements during the Parliamentary Debates which referred to, inter alia, “open” elections, the “Elected” Presidency and a “30-year” hiatus pertained to the general operation of the Model, in the light of our present constitutional arrangements which provide for the President to be popularly elected. Therefore, these statements do not detract from Parliament’s clear intention to choose President Wee’s second term as the First Term which must prevail.

Secondly, neither the Report nor the 2016 White Paper “compel the adoption of any starting point for the hiatus-triggered mechanism”. The 2016 Commission did not apply its mind to the policy question of when the Model would come into effect. Similarly, the 2016 White Paper is not conclusive of Parliament’s intent as to the purpose of Arts 19B and 164 which should be gleaned instead from the official record of the Parliamentary Debates.

Thirdly, the Report, the 2016 White Paper and the Parliamentary Debates all confirm, at an even higher level of generality (see [80] above), that the purpose of the Model was to ensure multi-racial representation in the office of the President. It is consistent with this aim that Parliament is not restricted, in choosing the First Term, to the terms of office of popularly elected Presidents. For the fact that a long time has elapsed since Singapore had a President of a certain race is troubling regardless of how our Presidents are elected.

Therefore, when recourse is had to the extraneous materials, they reveal that the purpose of Arts 19B and 164 is in line with the ordinary meaning of those provisions in the light of their textual context. Art 164, properly interpreted, gives Parliament “full discretion” to specify the First Term.

My decision

Having considered the parties’ submissions, I find that the Plaintiff’s interpretation of the purpose and object underlying Arts 19B and 164 from the relevant extraneous materials fails for the reasons that follow.

In my judgment, the legislative purpose of the provisions can be viewed from three different levels of abstraction:

(a) At the most specific level, Parliament intended the Model to permit subsequent specification of President Wee’s second term of office as the First Term (see the excerpts at [80] above).

(b) At a more general level, Parliament intended to ensure that our present system, where the President is popularly elected, produces Presidents from minority racial communities from time to time (see the excerpts at [75] above).

(c) At the highest level of abstraction, Parliament intended to uphold multi-racialism by ensuring minority representation in the Presidency in view of the President’s role as a symbol of the nation and a unifying figure that represents multi-racial Singapore. I make this finding based on a reading of the Report, the 2016 White Paper and the Parliamentary Debates as a whole.

I start with the second level of generality at [85(b)] which is the most favourable to the Plaintiff. From this perspective, since the Model addresses a problem which only arises where the President is elected by the citizens of Singapore and not by Parliament, only the terms of office of popularly elected Presidents should be counted under the Model.

It is true that, in the excerpts at [75] above, the speakers were referring to popularly elected Presidents and six-year terms in their speeches on aspects of and reasons for the Model. But I find that no one specifically said when the count should start from or that the count should start from the first popularly elected President. It is, if at all, only by implication that we can surmise that the speakers meant that only popularly elected Presidents should be counted (in the light of their references to five election terms and a period of 30 years). However, as Menon CJ noted in Ting (see [73] above), we should not be construing speeches in Parliament as if they were statutory (or I daresay, well-drafted contractual) provisions with fine distinctions and deliberate nuances in the choice of words and phraseology. They are not always amenable to such dissection under the microscope. Rather, in considering these speeches in Parliament, we need to ask two questions. First, what were the MPs debating? Secondly, why were they doing so? My answers to these questions in this case are as follows:

(a) First, the MPs were clearly debating the Model proposed by the 2016 Commission, the 2016 White Paper and the 2016 Bill before the House. One would hardly expect them to be talking about Presidents elected by Parliament or their four-year terms. The basic premise of their speeches, and what they were debating, was the Model in the context of the existing scheme of popular elections, and the envisaged state of affairs going forwards. They were debating the future of popularly elected Presidents with custodial powers. Therefore, in my judgment, it cannot safely be inferred, from the fact that some MPs spoke of popularly elected Presidents and their six-year terms, that Parliament intended only popularly elected Presidents to be counted for the Model.

(b) Secondly, in terms of why the MPs were debating the Model, it is clear that they were concerned with a possible side effect of the Elected Presidency that does not sit well with our country’s multi-racial ethos. This scheme of popularly elected Presidents (through no fault of the candidates, I hasten to add) has produced, over four Presidential terms, totalling 24 years, only one Elected President who was not Chinese (see, in particular, the President’s Message at [75(a)] above). Moreover, at the time of the Parliamentary Debates, Singapore had not had a Malay President for 46 years. The MPs were debating how to deal with this situation and the prospect that a member of a minority community (in particular, the Malay community) might not be elected to the Presidency in the immediate to near future. Therefore, in my judgment, Arts 19B and 164 should not be interpreted in the light of the purpose contended for by the Plaintiff alone. Even if I accept that Parliament’s primary purpose, in enacting Arts 19B and 164, was to ensure that Presidents of minority races are elected by the citizens of Singapore from time to time, Parliament, in passing the 2016 Act, considered other matters, in particular the span of time since Singapore last had a Malay President. This is vividly brought out by the excerpt from Ms Jessica Tan Soon Neo’s speech (see [75(c)(v)] above). Parliament did not merely intend to ensure that the electoral process returns Presidents of minority races from time to time. It also held the more specific and abstract intentions set out at [85(a)] and [85(c)] above. In my judgment, the interpretation of Arts 19B and 164 must account for these purposes. My point here is not that these more specific and abstract purposes necessarily trump the purpose which the Plaintiff contended for. It is simply that Parliament’s intention is a complex of purposes at different levels of abstraction, and a purposive interpretation must, as far as possible, be true to Parliament’s intention as a whole (albeit that, where there are conflicts, the purposes expressed by the majority as a whole prevail).

This leads me to the first level of abstraction set out at [85(a)] above. I have referred above to Art 164 which provides for Parliament to specify the First Term. The speeches in Parliament did not refer to this aspect of the Model until PM Lee stated the following on 8 November 2016 (see [80(a)] above):

No MP said that PM Lee was mistaken that the proposed provisions required the Government to legislate on when the count should start. The reason is that the text of Art 164 is clear and unambiguous. What did come up for debate later was the AG’s advice. I deal with this below. It is apposite here to underscore what I said about interpreting Parliamentary statements at [87] above. PM Lee said that the Government had taken the AG’s advice, followed by “We will start counting from …”. Yet, later speeches by others interpreted this as PM Lee saying that the AG had advised the Government to start the count from President Wee. He never said that.

On the contrary, after PM Lee announced that the 2017 Presidential Election would be reserved for the Malay community, several MPs applauded the announcement (see, eg, the excerpts from the speeches of Mr Zaqy Mohamad, Assoc Prof Fatimah Lateef, Mr Darryl David and Ms Rahayu Mahzam at [80(a)(i)] and [80(a)(iv)]–[80(a)(vi)] above). Even though other MPs did not celebrate PM Lee’s announcement, it is clear that the MPs knew that the Government intended that the 2017 Presidential Election would be a Reserved Election for Malay candidates (see, eg, the excerpts of the speeches of Mr Muhamad Faisal bin Abdul Manap and Ms Sylvia Lim at [80(a)(ii)]-[80(a)(iii)] above). Parliament then proceeded to pass the 2016 Act on 9 November 2016. Given that Parliament knew, at that time, that President Wee’s second term was intended to be specified as the First Term, I find that Parliament, in passing the 2016 Act, intended the Model to permit subsequent specification of President Wee’s second term of office as the First Term.

This intention is directly connected to the issue of whether, under Art 19B, Parliament could choose President Wee’s second term as the First Term. Accordingly, in my judgment, to give effect to Parliament’s will and intent on this issue, I must interpret Art 19B in light of Parliament’s specific intention (see [36] above).

This brings me to the third and highest level of abstraction (see [85(c)] above). In my judgment, the recent constitutional amendments reflect a re-emphasis on the President’s unifying role and the conviction that, in order for the President to fulfil that role, that office must reflect the multi-racial character of our country. This is evident from the Report (see the Report at paras 5.5 and 5.15). I accept the Defendant’s submission that, from the perspective of ensuring multi-racial representation in the Presidency in view of the President’s symbolic role, it makes no difference whether the President was elected by the electorate or by Parliament (see [82] above). In either case, the President’s capacity to symbolise Singapore is undercut if the occupants of the office do not reflect our multi-racial composition. Interpreting Art 19B in the light of the purpose framed at [85(a)] is consonant with the purpose in [85(c)], for it means that the 2017 Presidential Elections will be a Reserved Election for Malay candidates, thus ensuring that, after a passage of 46 years, Singapore’s eighth President will, if a qualified candidate or candidates stand, be once more from the Malay community. Singapore will have its first Malay President since Encik Yusof bin Ishak (if a qualified candidate stands).

I now turn to address the Plaintiff’s submission that I should place little weight on Parliament’s clear and specific intention regarding how the Model should be implemented (see [78] above). In my judgment, with respect, the Plaintiff’s arguments are flawed for the following reasons.

First, given that Parliament was making new law by inserting Art 19B and Art 164 into the Constitution, the Plaintiff’s argument that Parliament was, in effect, under a mistake of law (see [78(b)] above), is misconceived. There was no law for Parliament to be mistaken about. The Plaintiff does not contend that Arts 19B and 164 are themselves unconstitutional, as the basis of his contention is that a Reserved Election should only take place in 2023 (at the earliest) and not 2017. Accordingly, when Parliament introduced these provisions into our Constitution, it had free rein to endow them with the meaning it intended and which I have found them to have.

Secondly, and most crucially, I do not consider that I am at liberty to ignore Parliament’s clear intention even if it had held this intention on the basis of a misunderstanding as to the meaning of Art 19B. On this point, the Plaintiff relied on Birmingham Corporation v West Midland Baptist (Trust) Association (Inc) [1970] AC 874 (“Birmingham Corporation”) to submit that, if Parliament misunderstands what a statutory provision means, a court is not therefore barred from stating the true legal position. In that case, the House of Lords considered the meaning of a statutory rule which governed the assessment of compensation for land which had been compulsorily acquired. Lord Reid opined that the meaning of the provision depended on what the law had been before the statute was enacted: see Birmingham Corporation at 897D. Importantly, Lord Reid noted that the previous rule was “a judge-made rule of law” (at 898A) before making the following observations (at 898F–H) on which the Plaintiffs relied:

This passage is authority that, if Parliament misapprehends the law, a court may reaffirm the correct rule – if Parliament does not change the law. In my judgment, this caveat explains why Lord Reid said that the position would be different if Parliament enacted provisions which would only be workable if the law was as Parliament said it was (in that case, Parliament would be taken to have implicitly changed the law). The other judgments in Birmingham Corporation, which the Plaintiff did not cite, show that it is critical that Parliament does not change the law in order for a court to legitimately disregard Parliament’s misapprehension of the same. Lord Morris of Borth-y-Gest opined at 908F–G as follows:

Lord Donovan made the following observations at 911A–B:

In this light, Birmingham Corporation does not assist the Plaintiff. For it is not in dispute that, in introducing the Model into our Constitution by the 2016 Act, Parliament was making new law, which I consider to be a second paradigm change, and not simply stating its view of existing law. In this context, I am bound to give effect to Parliament’s clear intention.

Thirdly, I do not agree with the Plaintiff’s submission that to accord weight to the statements by PM Lee and other MPs, which indicate Parliament’s intent that the 2017 Presidential Elections would be a Reserved Election, makes the meaning of Art 19B depend on the AG’s view on Art 19B. I do not know what the AG’s advice was. But more importantly, the reason why I have placed weight on the relevant statements is because they reflect Parliament’s intention. Ultimately, the crucial point is that Parliament intended that the Model would permit subsequent specification of President Wee’s second term as the First Term (see [90] above). Whether this was based on the AG’s advice or otherwise, is simply not relevant.

I now turn to address the Plaintiff’s arguments on the Report and the 2016 White Paper. For the following reasons, these extrinsic materials do not strongly support the Plaintiff’s interpretation of Arts 19B and 164:

(a) First, I agree with the Defendant that the official report of the Parliamentary Debates is a surer guide to Parliament’s intention than the Report or the 2016 White Paper. This is especially because neither the Report nor the White Paper dealt with when the Model would be brought into effect (see [(c)] below).

(b) Secondly, I agree with the Defendant that neither the Report nor the 2016 White Paper compels that a certain term of office of the President be specified as the First Term (see [81] above).

(c) Thirdly, in respect of the Report, I note the passages on which the Plaintiff relied (see [76(a)] above) which suggest that the Model was only meant to apply to popularly elected Presidents. In my judgment, notwithstanding the point at [(b)] above, it may still fairly be asked whether the Commission ever contemplated that the Model would apply to Presidents who were not popularly elected. However, even if the answer to this is “no”, I do not think that this supports the Plaintiff’s interpretation of Arts 19B and 164. In my judgment, the Commission’s recommendations in the Report did not extend to questions of when the Model would come into effect. Notably, the Commission’s Terms of Reference were as follows:

It is plain from the Terms of Reference that the Commission was given, fundamentally, the task of considering and proposing mechanisms to ensure that Presidential elections return Presidents from minority races from time to time. Thus, the Commission did not address questions of implementation regarding when the Model would be brought into effect. Therefore, even if the Commission did not contemplate that the Model would apply to Presidents who were elected by Parliament, I do not consider that this supports the Plaintiff’s case. For Parliament addressed when the Model would be brought into effect; and it is Parliament’s intention which is key in interpreting Arts 19B and 164.

(d) Fourthly, the White Paper, which accepted the recommendations made in the Report, should be read in the same light.

Finally, I agree with the Defendant that the Explanatory Statement for the 2016 Bill confirms that Parliament did not intend that the Model would only encompass the terms of Presidents who were popularly elected. The relevant provisions of the Explanatory Statement state:

Again, the Explanatory Statement mirrors the text of Arts 19B and 164: it does not indicate that Parliament intended that the terms of office of Presidents who were elected by Parliament would not fall within the ambit of the Model.

For all these reasons, I find that, when Art 19B is read in the light of its legislative purpose as garnered from the relevant extraneous materials, it bears the same meaning as and confirms its ordinary meaning read in the light of its text and textual context. Art 19B does not fetter Parliament’s power to specify President Wee’s second term of office as the First Term.

The technical challenge

There remains the technical point which I mentioned at [34] above. The Plaintiff’s first prayer in this OS is for a declaration that s 22 of the PE(A) Act 2017 is unconstitutional. The Defendant argues that this prayer should be dismissed in limine, as the PE(A) Act 2017 was rendered spent upon its commencement.

The Plaintiff relied on Prabagaran a/l Srivijayan v Public Prosecutor and other matters [2017] 1 SLR 173 (“Prabagaran”) in support of its position; and, in particular, on the following observations by Chao Hick Tin JA at [32]:

In my judgment, these comments, concerning how the doctrine of severability applies where amendments are made to pre-existing statutes, do not support the Plaintiff’s position. It should be noted that, in Prabagaran itself, the applicants challenged provisions in the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”); they did not challenge the Misuse of Drugs (Amendment) Act 2012 (Act 30 of 2012) which inserted the impugned provisions into the MDA. The CA plainly contemplated that the applicants had properly challenged the MDA instead of the Act which had amended it. I agree with the Defendant that, since the PE(A) Act 2017 was rendered spent after it came into effect, the proper object of the Plaintiff’s challenge was the PEA and not the PE(A) Act 2017.

Conclusion

For the reasons set out above, I find that Parliament was entitled, through the passing of the PE(A) Act 2017, amending the PEA, to specify President Wee’s last term in office as the First Term. This is clear from both the text and context of Arts 19B and 164 as well as the relevant extraneous materials. I therefore hold that the Schedule to the PEA is not unlawful or invalid or unconstitutional.

In my judgment, Parliament could have started the count from the first popularly elected President, President Ong, or, as Mr Rajah SC submitted, Parliament could have postponed the implementation of the Model by starting the count from any President after President Ong, but Parliament was equally free to accelerate the implementation of the Model, by starting the count from President Wee’s second term. Ultimately, since Art 19B does not fetter Parliament’s power under Art 164, Parliament’s choice of the First Term is a policy decision which falls outside the remit of the courts.

Outstanding matter

I note that the first affidavit which the Plaintiff filed in this OS (“the Original Affidavit”) included an opinion and an affidavit by Lord David Phillip Pannick QC (“Lord Pannick QC”). The Defendant applied in Summons No 2310 of 2017 (“Summons 2310/2017”) to strike out Lord Pannick QC’s opinion and affidavit, and references to Lord Pannick QC in the Original Affidavit on the basis that they were irrelevant and/or oppressive and/or an abuse of process. Subsequently, the parties agreed that the Plaintiff would withdraw the Original Affidavit, and file a fresh affidavit, subject to being granted liberty to adduce Lord Pannick QC’s opinion if the issue of standing was contested. Summons 2310/2017 remains outstanding but I believe only a formal order would be required.

Quentin Loh Judge