Statutory Reform:
Position prior to statutory reform
- Operated within undefined and vague parameters (i.e. multiple interpretative approaches: literal rule, golden rule).
a. Wah Tat Bank Ltd v Chan Cheng Kum [1969–1971] SLR 22: HC adopted the “plain and ordinary meaning” without (expressly) considering the purpose or intention behind the statute.
b. Contrasted with Low Gim Siah v Law Society of SG [2007] 1 SLR 795: HC preferred purposive approach, which involves ascertainment and effecting of the purpose and intention underlying the relevant statutory provision. - Permissibility of extrinsic materials was uncertain.
a. Contrasting ideals of practice of UK courts prior to Pepper v Hart [1992] UKHL 3 (prohibited direct judicial ref to parliamentary debates) and departure from strict English approach before Pepper v Hart.
b. Annathurai v AG [1987] SLR 375; Re Dow Jones Publishing (Asia) Inc v AG [1988] SLR 481: Referred to Hansard before Pepper v Hart.
Statutory Reform:
Substance of the Statutory Reform
- S 9A(1) IA: Purposive approach - in interpreting written law provision, an interpretation that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in written law or not) shall be preferred to an interpretation that would not promote that purpose or object.
- S 9A(2) IA ID’d 3 circumstances in which extrinsic materials may be referred to:
a. If ordinary meaning of the provision (taking into acc its context in written law and purpose/object underlying the written law) is clear, extraneous material can only be used to confirm the ordinary meaning but not to alter it.
b. If provision is ambiguous or obscure on its face, extraneous material can be used to ascertain the meaning of the provision.
c. If ordinary meaning of the provision (taking into acc its context in written law and the purpose/object underlying the written law) leads to a result that is manifestly absurd or unreasonable, extraneous material can be used to ascertain the meaning of the provision. - S 9A(4) IA: 2 further considerations for whether to refer to extrinsic materials, and, if so, how much weight to place on them:
a. Desirability of persons being able to rely on ordinary meaning conveyed by the provision text, taking into acc its context in written law and the purpose or object underlying the written law; and
b. Need to avoid prolonging legal or other proceedings without compensating advantage.
Principles of Statutory Interpretation in Singapore:
Proper Interpretative Approach
- Dominant interpretative approach in SG: Purposive approach.
a. PP v Low Kok Heng [2007] 4 SLR(R) 183: VK Rajah held that stat interpretation in SG takes place against the backdrop of s9A(1) IA.
Any other common law interpretative approach (e.g. plain meaning rule and strict construction rule) must yield to the purposive approach. - Chief Assessor v First DCS [2007] SGHC 82: Incorrect to read the provision as if it existed in a vacuum. Effect of S 9A IA is to make the purposive approach the paramount rule of construction.
Principles of Statutory Interpretation in Singapore:
Purposive Approach
- General rule is that “purpose” refers the purpose of the statute stated generally.
a. Raffles City Pte Ltd v AG [1993] 2 SLR(R) 606: Re interpretation of “a storey of an approved development project” in Property Tax Order 1967. Qn was whether phrase covered 3 modern multiplexes comprising total 138 stories.
Held: Court did not think that Parliament was capable of thinking through each and every exact consequence of its stat provisions and viewed the relevant stat intent as being a general purpose underlying the statute. - Might also refer to the consequential intention concerning specific stat provision.
a. Toh Teong Seng v PP [1995] 2 SLR 273: HC referred to Minister’s 2nd Reading speech of the Environmental Public Health Act and decided that the purpose of a particular section was to deter dumping. - BUT, ultimately, shouldn’t be a stark contrast of purposive interpretation of the general statute or specific provisions.
Principles of Statutory Interpretation in Singapore:
Purposive Approach -
Court’s 3 Steps
[Tan Cheng Bock v AG [2017] 2 SLR 850]
- Purposive approach should be interpreted in a way that gives effect to the intent and will of Parliament.
- Court’s task when undertaking purposive interpretation of a legislative provision involved 3 steps:
a. Ascertain possible interpretations of the provision, having regard to provision text and context of provision within written law as a whole. Court did so by determining ordinary meaning of the words, aided by rules and canons of stat construction.
* * Parliament doesn’t legislate in vain [JD Ltd v Comptroller of Income Tax [2006]].
* * Parliament doesn’t intend unworkable or impracticable results [Hong Leong Bank Bhd v Soh Seow Poh [2009]].
b. Ascertain legislative purpose of statute.
a. CJ draws distinction between general and specific purpose:
(i) General purpose: Drawn from entire statute.
(ii) Specific purpose: Particular to specific clauses in the legislation.
c. Compare possible interpretations of text against the statute’s purpose. An interpretation which furthered the purpose of the written text was to be preferred.
Principles of Statutory Interpretation in Singapore:
Purposive Approach -
3 Views
- Court is bound by text as enacted, but stat purpose may be discerned though a non-literal reading of the text within reasonable confines.
a. Low Kok Heng: VK Rajah stated that the purposive approach may permit a literal reading of a statutory provision if such reading gives effect to the stat purpose, but text controls the extent to which a non-literal meaning may be reached. - Stat purpose is completely independent of stat text: Courts can rewrite stat provisions to achieve the underlying “purpose”.
a. PP v Knight Glenn Jeyasingam [1999] 2 SLR 499: EA was merely a “facilitative statute” which permitted the intro of common law rules not expressly provided for under the EA in acc with the will and intent of Parliament. - While stat purpose must be given effect to, stat purpose will always be found in precise and unambiguous statutory text, i.e. where the statutory provision is so clear, it will be literally interpreted because that is regarded as giving effect to statutory purpose.
a. PP v Manogaran s/o R Ramu [1996] 3 SLR(R) 390: CA held that the cardinal rule in stat interpretation was to give effect to the intention “expressed in the provision itself”, such that if the stat wording is precise and unambiguous, then all Court had to do was to expound the words in their ordinary and natural sense.
Principles of Statutory Interpretation in Singapore:
Purposive Approach -
2 Approaches
[AG v Ting Choon Meng [2017] 1 SLR 373]
- Majority’s approach is that extraneous materials are just 1 piece of evidence to consider along with the text and context of the legislation.
- Minority judgment (which majority endorsed) prescribes clear preconditions for invoking extraneous materials:
(1) Court must consider possible textual meanings of the legislation agst its purpose, and then choose 1 meaning based on the purpose. This is the purposive meaning.
(2) Court must then decide whether to use extraneous materials. Where purpose clearly supports 1 textual meaning over another, extraneous materials can only be used to confirm that meaning and not to depart from it. But where the purpose does not clearly support one meaning over another, then extraneous materials can be used to choose between them. These extraneous materials must be intrinsically capable of shedding light on the purpose of the provision or statute to begin with. Section 9A(3) provides a non-exhaustive list of such materials (at [63]-[64]).
(3) Court can give weight to the extraneous materials based on the factors in section 9A(4) and some other considerations that have been developed by the common law (at [70]).
Principles of Statutory Interpretation in Singapore:
Purposive Approach -
3 Views -
Goh
Goh argues that (1) is to be preferred as it rightly gives deference to the purposive approach as statutorily mandated under s9A(1) IA.
- VK Rajah’s view in Low Kok Heng gave proper respect to the statutory text.
- CA in Manogaran arguably placed literal approach ahead of purposive approach since it is not always the case that a precise and unambiguous statutory text will give effect to the statutory purpose.
- View that Court possesses a general ability to rewrite statutory provisions is problematic as it effectively allows for the introduction of something not contemplated by the statutory words, and risk misconstruing the intention of Parliament.
Principles of Statutory Interpretation in Singapore:
Purposive Approach -
3 Views -
Barak
- Argues that authority to alter a text is one that belongs to Parliament.
a. Act of interpretation is NOT express rewriting of the language.
b. Constitutional framework and separation of powers restricts interpreters from giving the language of the statute any meaning they desire. - Nation Fittings v Oystertec plc [2006] 1 SLR(R) 712: Court’s purposive interpretation should be “consistent with, and should not add to, take away from, or stretch unreasonably the literal language of the statutory provision concerned”.
- Staying within the confines of interpreting literal wording and not re-writing legislation preserves the institutional integrity of the judiciary.
Principles of Statutory Interpretation in Singapore:
Purposive Approach -
Goh -
In the event of an outdated statute, courts should interpret based on these 2 principles.
- To interpret statutory purpose at time where the law was passed.
[2. Subsequent circumstances may be used to affect the interpretation of an older statutory provision.]
- Applied in BFC v Comptroller of Income Tax.
- Dangerous if subsequent stat provs can affect interpretation of previous stat provs w/o express stat intent: Would allow Courts the latitude to rewrite older provisions. Arguably blurs the lines of separation of powers.
- WX v WW [2009] 3 SLR(R) 573: Concerned interpretation of s114 EA (person born during continuance of a valid marriage shall be presumed as the legitimate child of that marriage).
a. Provision was enacted at a time w/o DNA testing. DNA test report showed that child was not H’s bio child.
b. HC: “difficult” to see how Parliament, in enacting s68 Women’s Charter (legal duty on parent to contribute to maintenance of children whether they are his or not) after s114 EA was enacted, could have intended to relieve the duty to provide maintenance vis-à-vis the bio father despite M being married to another when child born.
c. Court found that presumption of s114 EA was (historically) concerned with legitimacy and not paternity, and its decision was independent of this interpretation.
d. Impt to separate paternity and legality, because failure to do so = unacceptable consequence that bio father has no duty to maintain a child who was born during M’s valid marriage to another. No presumption that H was both the legitimate and bio father of the child.
e. Since ss 68 and 69 Women’s Charter is about paternity (maintenance to be provided regardless of legitimacy), bio father could be ordered to maintain the child. - However, note that Court was using a subsequent stat provision to interpret an older statute enacted half a century earlier. Dangerous since it’s unclear what Parliament intended with the older act, as that provision was likely never contemplated by Parliament in the passing of the Women’s Charter.
Principles of Statutory Interpretation in Singapore:
Purposive Approach -
Goh -
In the event of an outdated statute, courts should interpret based on these 2 principles.
[1. To interpret statutory purpose at time where the law was passed.]
- Subsequent circumstances may be used to affect the interpretation of an older statutory provision.
- AAG v Estate of AAH (deceased) [2010] 1 SLR 769: Issue was whether illegitimate child could claim for support under the Inheritance (Family Provision) Act.
a. S3(1) IFPA allows W to apply for maintenance for certain dependents, including son and daughter. IFPA was enacted more than 45 years ago.
b. S2 IFPA: Defines “son” and “daughter” for the purposes of IFPA but does not expressly exclude illegitimate child from claiming maintenance under the IFPA.
c. Held (CA): Dismissed appeal and held that the Rs (estate) need not provide any maintenance for A’s children.
d. Court was mindful of its limitations in stretching the meaning of statutory provisions.
e. Emphasised that IFPA was enacted to introduce into SG the provs of UK Inheritance (Family Provision) Act 1938. The established interpretation of IFPA (UK) by the English courts was that illegitimate children were not entitled to maintenance under it.
f. If the correct interpretation of IFPA at the time, it is not for Courts to extend its scope by judicial interpretation.
g. Parliament would have to make legislative amendments to IFPA if it wishes to take into acc illegitimate children. - Therefore, while language is open to varying degrees of interpretation, this does not mean that the statute is infinitely malleable and can take on any meaning.
Principles of Statutory Interpretation in Singapore:
Purposive Approach -
Barak on Goh -
In the event of an outdated statute, courts should interpret based on these 2 principles.
Barak agrees with Goh.
- Authority to alter a text belongs to its author (i.e. Parliament, but not to the judiciary).
a. As AAG v Estate of AAH, deceased [2010] is a CA decision, lower courts will unfortunately have to apply the purposive approach to preserve the consistency of the statute. - Thus, until Parliament intervenes in an out-dated statute, it will have to be interpreted with ref to the purpose of the statute at the time of enactment – this might in certain circumstances give rise to strange results.
Principles of Statutory Interpretation in Singapore:
Purposive Approach -
When is the purposive approach used?
- General approach: Neither ambiguity nor inconsistency needs to exist within a stat provision before a purposive approach could be adopted (Planmarine AG v Maritime and Port Authority of Singapore [1999] 1 SLR(R) 669).
Confirmed in Dorsey James Michael v World Sport Group Pte Ltd [2013] 3 SLR 354. - BUT, currently unsure if purposive approach can be applied to penal statutes.
a. Low Kok Heng (JA VK Rajah): In interpreting Penal Statutes, the common law strict construction rule, which mandated construction to D’s benefit, might be invoked if the statutory provision remained ambiguous despite all attempts at purposive interpretation. Demonstrated that purposive approach can fail in some circumstances.
b. Tang Lang Khin v PP: Strict construction rule endorsed for penal statutes if there was ambiguity in the statutory provision concerned.
c. Contrasted in Forward Food Mgt v PP: Proper approach taken in construing a penal provision is to “first consider if the literal and purposive interpretations of the provision leave the provision in ambiguity”. Only to apply strict construction rule after all other tools of ascertaining Parliament’s intent have been exhausted.
Principles of Statutory Interpretation in Singapore:
Purposive Approach -
When is the purposive approach used?
Goh
- Correct approach is to regard the strict construction rule for penal statutes as a presumption of the statutory purpose, and nothing more, i.e. the strict construction rule applies subject to a contrary intention found via the purposive approach. This is because the rationale of the strict construction rule is the presumption that Parliament intended to penalise only through clear laws, so when laws were unclear, they should be interpreted in D’s favour (as per PP v Phuthita Somchit).
- Avoids the unsatisfactory view (in Low Kok Heng) that the purposive approach can fail to find the statutory purpose. Instead accords the rule its true status as merely presumptive but not conclusive of the statutory purpose.
Principles of Statutory Interpretation in Singapore:
Purposive Approach -
When can refer to extrinsic material?
- S 9A(2) IA: Provides confirmatory and ascertainment functions.
- Earlier cases emphasised on ascertainment function and ignored confirmatory function.
PP v Low Kok Heng [2007] 4 SLR(R) 183: Extrinsic materials may be referred to by Courts even where the meaning of the provision concerned is clear in its face.
AG v Ting Choon Meng [2017] 1 SLR 373: Extraneous materials are just 1 piece of evidence to consider along with the text and context of the legislation.
** Courts are not obliged to refer to extrinsic materials (Seow Wei Sin v PP [2011]) even if it may be difficult for them to discharge statutorily mandated duty of giving effect to statutory purpose without doing so.
** S9A(2) IA is subject to s9A(4) IA on pragmatic concerns that serve as limits to use of extrinsic materials.
Principles of Statutory Interpretation in Singapore:
Purposive Approach -
What kind of extrinsic material can be referred to?
- Non-exhaustive list can be referred to.
a. ACS Computer (Khoo J): List of materials in s9A(3) IA “is not exhaustive” and the “general provision” of this section allows ref to any material capable of assisting in ascertainment of the meaning of the provision in the circumstances stated in s9A IA. - Extrinsic evidence that are usually referred to are in s9A(2) IA:
(b) any explanatory statement relating to the Bill containing the provision;
(c) the speech made in Parliament by a Minister on the occasion of the moving by that Minister of a motion that the Bill containing the provision be read a second time in Parliament; and
(d) any relevant material in any official record of debates in Parliament.
Principles of Statutory Interpretation in Singapore:
Purposive Approach -
Concurrent line of cases which seek to limit type of extrinsic materials referable.
- Lee Kwang Peng v PP [1997] 2 SLR(R) 569: S9A(3) IA did not warrant the use of academic texts in construing Parliament’s intention bc academic texts and private works of draftsmen were “conspicuously absent” from the list of extrinsic materials provided in s9A(3) IA.
- Goh: Criticised this approach as Courts should not affect their ability to fulfil their role in ascertaining the statutory purpose by limiting the type of extrinsic material referable.
- AG v Ting Choon Meng [2017] 1 SLR 373: Should only admit extrinsic materials that advance the objects and purposes underlying written law. Requires 3 steps:
(i) Ascertain the possible interpretations of the text as it had been enacted, having due regard to the text in its context within the written law.
(ii) Court should ascertain the legislative purpose or object of the statute as discerned from the language used in the enactment and by reference to any mischief that Parliament was seeking to address by it.
(iii) Court should compare the possible interpretations of the text against the purposes or objects of the statute.
Principles of Statutory Interpretation in Singapore:
Purposive Approach -
Effect of extrinsic materials?
- Seow Wei Sin v PP [2011] 1 SLR 1199: D was convicted of remaining outside of SG without an Exit permit punishable by the Enlistment Act. DC imposed a term of imprisonment instead of the typical fine based on the influence of a Ministerial Statement stating the tough stand taken by MinDef against AWOLers.
Held: Courts have to be mindful to confine the actual use of extrinsic materials to interpreting the ordinary meaning of the statutory provision concerned.
Cannot allow extrinsic material to take the place of actual words used in the statute (i.e. staying within their constitutional powers of interpretation).
Principles of Statutory Interpretation in Singapore:
Selected E.g.s of Other Rules of Statutory Interpretation as Recently Used by SG Courts -
Expressio Unius Principle
[The express mention of an item excludes others.]
PP v Li Weiming [2014] 2 SLR 393: Where the statute sets out specific remedies, penalties or procedures, it is presumed that other remedies, penalties or procedures that might have been applicable are by implication excluded.
Parliament is logically presumed to have intended the exclusion of other similar matters.
But note where Parliament did not contemplate and those matters fit within the general purpose of statute, they might be included.
Principles of Statutory Interpretation in Singapore:
Selected E.g.s of Other Rules of Statutory Interpretation as Recently Used by SG Courts -
Ut Res Magis Valeat Quan Pereat Principle
[It is better for a thing to have effect than to be made void.]
Fatimah bte Kumin Lim v AG [2014] 1 SLR 547: An interpretation that does not render a provision otiose is to be preferred to one that does.
Not Parliament’s intention to make inconsistent provisions in the same statute.
Principles of Statutory Interpretation in Singapore:
Selected E.g.s of Other Rules of Statutory Interpretation as Recently Used by SG Courts -
Ejusdem Generis Principle (not accepted in SG)
[Assuming that a general term describing a list of specific terms denotes other things that are like the specific elements.]
Wide words associated in text with more limited words are taken to be restricted by implication to matters of the same limited character.
Orchard Central Pte Ltd v Cupid Jewels Pte Ltd [2014] 2 SLR 156: While HC applied the principle, CA rejected it on the basis that the purposive approach was contradictory.
Statutory purpose did not suggest that Parliament intended to restrict wide words to the genre of items in a prior list of narrower items.
Principles of Statutory Interpretation in Singapore:
Selected E.g.s of Other Rules of Statutory Interpretation as Recently Used by SG Courts -
Lex Nil Frustra Facit Principle
[The law does nothing in vain.]
Court avoids an interpretation that produces an absurd result.
LaserResearch (S) Pte Ltd (in liquidation) v Internech Systems Pte Ltd [2011] 1 SLR 382: Courts avoid an interpretation that produces an absurd result, such as the avoidance of a futile or pointless result or pointless legal proceedings.
Presumption that Parliament acts reasonably, and in doing so, avoids absurd results.
Principles of Statutory Interpretation in Singapore:
Selected E.g.s of Other Rules of Statutory Interpretation as Recently Used by SG Courts -
Interpretation of Statute so as not to take away Pre-Existing Common Law Rights
Goldring Timothy Nicholas v PP [2013] 3 SLR 487: Parliament would not have removed rights pre-existing in common law if there was no express provision or clearly evinced intention to that effect.
Parliament would not have amended common law rules without careful consideration.
Principles of Statutory Interpretation in Singapore:
Selected E.g.s of Other Rules of Statutory Interpretation as Recently Used by SG Courts -
Deeming Statutory Provisions
Create a statutory fiction. Default rule is that such provisions are given full effect to and carried to their logical conclusions.
Glengary Pte Ltd v Chief Assessor [2012] 4 SLR 1130: Evaluated what it means to carry such fictions to their logical conclusions. Such fictions naturally have consequences that arise from them, to what extent should those consequences be so “deemed”.
Statutory fiction is only to be carried to its logical conclusion within the framework of the purpose for which it was created.
May be inferred from the inevitability of the consequences flowing from the statutory fiction. If the consequences were inevitable, it may be presumed that Parliament intended them.
