Tuesday, October 23, 2012

The day the Constitution died (again)

To begin with, we don't have much of a Constitution to speak of.  Ours is not a liberal Constitution peppered with extensive safeguards against the abuse of power.  Our Constitution does attempt to limit the exercise of power and there are many restrictions on what the respective organs of state may or may not do.  But, there are enough provisions that allow the state to claim expansive powers and enough provisions to allow for the restriction of citizens rights. 

But, whatever we might say about our (amendment-ravaged) Constitution, the fact remains that it is a document that is a starting point for any discussion in law about the extent of the state's power and the extent of the citizen's rights.   There are 'silences' in many provisions that enable legroom for a pro-citizen instead of a pro-state interpretation. (Just realised that 'pro-state' unhyphenated is prostate.  There is an accidental link between intellectual alignment with the powers that be and a part of the anatomy near the testicular region. Sorry about this unnecessary and irrelevant digression. :-) )

That brings me to the IMF loan case.  Kenneth Jeyaretnam, the leader of the Reform Party, brought an application to the High Court for the Court to rule on the legality of the Singapore government's decision to pledge a loan to the IMF.  I wasn't surprised by the decision of the Court.  The Court has ruled as follows:

"Art 144(1) was obviously intended to apply to the raising of loans and not the giving of loans. It follows that the approval of Parliament and the concurrence of the President are not required for the Loan. As such, the present application did not disclose a prima facie case of reasonable suspicion in favour of granting the remedies sought and it could not be said that there appeared to be a point which might, on further consideration, turn out to be an arguable case in favour of granting to the applicant the relief claimed. On this ground alone, the application for leave must be dismissed."

At issue in the case was the question of whether the government required Presidential/Parliamentary approval for the raising and giving of loans.  Kenneth contended that approval is needed for both.  The government contended that approval is only needed for the raising of a loan and not the giving of a loan.  The reason for the contention is the mode of interpretation to be employed.  Kenneth's Counsel argued for a literal interpretation of the Constitution relying on the ordinary dictionary meaning of the words employed.  The government relied on a purposive interpretation. (This is a technique of statutory interpretation where a law is interpreted on the basis of the objectives of Parliament in enacting the provision; i.e. looking at the 'purpose' behind the provision.)

The Court has obviously accepted the purposive interpretation.  The actual provision in question is:

"Article 144.
—(1) No guarantee or loan shall be given or raised by the Government —
(a)except under the authority of any resolution of Parliament with which the President concurs"

The Court is of the view that Article 144 prohibits the giving of a guarantee and the raising of a loan and not the other way around.  I have blogged about this earlier and have mentioned that this is a technical legal possibility.

So, no surprises as to the result.  If so, why do  I say that the Constitution has died.  Well, there is another concern that I have about the High Court decision.  This is a far more serious matter with far-reaching consequences.  The Court has decided that Kenneth Jeyaretnam does not have the locus standi to make a claim.  (locus standi - the standing of the party.  the question as to whether the person has the right to make a particular claim in court.)

Ordinarily, if the case is one involving a private interest, there is little difficulty in establishing locus standi.  But, if the issue is one of public interest, the law hasn't been clear in Singapore.  The English Courts (from whom we adopt this concept) have moved ahead to give a broad application for locus standi in public interest cases.  Tan Lee Meng J stated the following at paragraph 42 of the judgment:

"The English position on locus standi in relation to the enforcement of public rights has become more liberal. In Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] 1 AC 617, Lord Diplock stated (at 644) as follows:

It is not, in my view, a sufficient answer to say that judicial review of the actions of officers or departments of central government is unnecessary because they are accountable to Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a court of justice for the lawfulness of what they do, and of that the court is the only judge. "

The judge went on to look at the Malaysian position in Government of Malaysia v Lim Kit Siang.  In the end, the decision of the Court was to decide along the lines of the Malaysian case.  (In any event, the Malaysian case appears to have been given a nod to by our Court of Appeal in PP v Tan Eng Hong recently.)

On that basis, the High Court has now decided that Kenneth does not have the locus standi to pursue this case:

"an applicant in a case involving a public right should certainly be required to show that he had suffered special damage as a result of the public act being challenged and that he had a genuine private interest to protect or further."

The impact of this decision is that in future, any judicial review case involving a public interest will require special damage to be suffered by a citizen before it can be brought before the Court.  And so, one possible avenue of ensuring Constitutional governance is closed.  And so too, our Constitution has died. 

Of course, one might just as well cynically conclude that it was not a living document to begin with.  To be alive, the Constitution must not merely be a bunch of words on a piece of paper.  To be alive, the Constitution must be imbued with the spirit of a people and the values of a nation.  With so much to question about whether we have a coherent set of values or that there is a certain Singapore spirit and in fact, with so much to question as to whether we are even a coherent collection of individuals capable of being collectively referred to as a 'people' and even so much to question whether we are a 'nation', the question of a living Constitution probably doesn't arise.  If something is not alive, it can't die, can it?


theonion said...

Most amused on this article as purposive interpretation would be more in line with left side of the Supreme Court of USA instead of the literalist interpretation which is the most favoured ideal.

Anonymous said...

I am not legally trained but as far as I am concerned, Article 144 is a bad provision. From the viewpoint of financial risk, giving a guarantee is less risky than giving a loan commitment, let alone giving a loan. If the Article is interpreted to say that giving of a guarantee required parliament approval, then from a financial risk point of view, giving of a loan commitment or giving of a loan all the more should require parliament approval. I am also aghast at the ruling that KJ has no locus standi. How can that be when public funds are involved? Singapore jurisprudence is heading to the dogs, if it is not already there. Under the circumstances, our constitution is not worth the paper it is written on.

Anonymous said...

In the Kingdom of Lanfang, the ultimate authority on the constitution rests with the absolute monarch and his sycophants. You can write anything you want for your constitution and they can interpret it anyway they want.

Anonymous said...

I thought the words in Article 144 is very clear that parliament's approval is needed when the Govt "gives a loan OR raise a loan".

So how can they interprete it now that raising a loan requires prior approval while giving a loan does not ?

Then why does LKY tell us then the key purpose of the President is to hold the key to jealously guard our reserves ? Did he blatantly lied to us then that now the interpretation is somehow different now that parliament's approval and therefore President's approval is not necessary ?

Anonymous said...

I disagree that the court adopted a purposive interpretation. If it was a purposive interpretation, it would have concluded that the purpose of the provision is financial risk management. In my view, the court took a literal interpretation, relying solely on the wording and phrasing devoid of the context in which the provision should be interpreted. Because our courts preferred literal interpretation, I don't think it deserves any respect nor accolades.

Anonymous said...

In any organisation, there is a limit of authority. So in the case of Singapore, what is the limit and who is the authority?

Subra said...

The Court did adopt a purposive interpretation. Ordinarily, a purposive interpretation would have protected citizens' rights and restricted the power of the state. It is common that a literal interpretation would have the opposite effect of restricting citizens' rights.

But, much really depends on the specific provision that we are dealing with.

A literal interpretation of Article 144 would have resulted in the conclusion that the raising and giving of a loan is subject to parliamentary and presidential approval. To interprete in the way that the court did would involve going beyond the literal words in the statute.

This is from the judgment:

"The respondent (AG) submitted that Art 144(1) should be given a purposive interpretation to reflect the intention of Parliament, which is that no guarantee shall be given and no loan shall be raised without its approval and the concurrence of the President."

"In contrast, the applicant contended that Art 144(1) should be given “a literal and dictionary reading”, in which case, no loan shall be given or raised by the Government without the approval of Parliament and the concurrence of the President. His position was that while a purposive interpretation is appropriate for fundamental rights, a different approach should be taken in the case of the accountability of the Executive to the Legislature. This assertion cannot be countenanced because s 9A(1) of the Interpretation Act (Cap 1, 2002 Rev Ed) provides that “an interpretation that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to an interpretation that would not promote that purpose or object”

Subra said...

The judge looked at the Constitution Amendment Bill, the Explanatory note to the Bill and the Amended version of the Constitution together with a joint reading of Art 144(1) and 144(2) to arrive at the conclusion that Parliament intended to permit the giving of a loan and to restrict the raising of a loan.

He also looked at two government White Papers in 1988 and 1990 preceeding the amendments to the Constitution to arrive at the purpose for which the provision was enacted.

All in all, I don't think that it is a case of bad interpretation by the courts (except for one reservation that I have about interpretation in constitutional cases involving enlargement or restriction of executive powers). My problem with Art 144 is that it is a BAD law to begin with.

Anonymous said...

"My problem with Art 144 is that it is a BAD law to begin with." I can agreee with this because it does not make sense from a financial risk management viewpoint that giving a guarantee requires parliament approval whilst giving a loan or loan commitment does not require parliament approval.

Anonymous said...

I think we should have realised by now that the government can never be wrong or rather unconstitutional.

The case of Eng Foong Ho was a perfect illustration of it. This ruling should not come as a surprise..

Anonymous said...

"The judge looked at the Constitution Amendment Bill, the Explanatory note to the Bill and the Amended version of the Constitution together with a joint reading of Art 144(1) and 144(2) to arrive at the conclusion that Parliament intended to permit the giving of a loan and to restrict the raising of a loan."
This raises the question whether the AGC or the judge saw the inconsistency in requiring parliamentary approval for the giving of a guarantee whilst no such approval is required for the giving of a loan or loan commitment. If yes, then the judge should at least commented on whether parliament had unwittingly overlooked the contradiction. If no, then it raised the question whether the judge/AGC deliberately overlooked the contradiction since if I remembered correctly, KJ did allude to this, albeit, indirectly.

Unknown said...

You are quite right that I am currently the leader of the Reform Party. However I did not take this action in that capacity as I wanted to distance it from any partisan political standpoint. I took this action as a private citizen like any of you concerned about the government's stewardship of his forced CPF savings.

Unknown said...

Hi Subra,

I'm trying to contact you over the IMF loan judgement to see if you can help pro bono with the appeal.

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