1 [Please note that this case has not been edited in accordance with the current Singapore Law Reports house style.]

2 Yong Pung How CJ (pronouncing the opinion of the tribunal):

3 1 This Reference came about as a result of the Government suspending the operation of the newly enacted art 5(2A) of the Constitution followed by the Government’s desire to amend art 22H(1) of the Constitution. Hence arose this question for determination by this tribunal:

4 Whether because art 5(2A) of the Constitution has not been brought into operation, the President has the power under art 22H(1) of the Constitution to withhold his assent to any Bill seeking to amend any of the provisions referred to in art 5(2A), and specifically to any Bill seeking to amend art 22H to restrict the President’s powers thereunder to any non-constitutional Bill which provides directly or indirectly for the circumvention or curtailment of the President’s discretionary powers conferred upon him by the Constitution.

5 2 The Attorney General on behalf of the Government and counsel appointed by the tribunal to protect the interests of the Presidency made submissions respectively, with which we shall now deal in turn. However, it would be appropriate to provide first a brief background to the reference.

6 The constitutional background

7 3 On 9 August 1965, Singapore achieved its independence from Malaysia pursuant to the Independence of Singapore Agreement 1965 made between the Government of Malaysia and the Government of Singapore. On 22 December 1965 the Constitution (Amendment) Act (No 8 of 1965) was enacted by the Yang di-Pertuan Negara with the advice and consent of the Legislative Assembly of Singapore. The Act changed, inter alia, the titles of ‘Yang di-Pertuan Negara of Singapore’ to ‘President of Singapore’ and the ‘Legislative Assembly’ to ‘Parliament’. Since then, the Constitution has been amended many times.

8 4 On 3 January 1991, Parliament passed the 1990 Constitution (Amendment No 3) Bill (hereinafter referred to as ‘the 1990 Bill’) to establish the office of an Elected Presidency. It was subsequently assented to by the President on 18 January 1991 as the Constitution (Amendment) Act No 5 of 1991 (hereinafter referred to as ‘the 1991 Act’). Except for art 5(2A), the Act came into operation on 30 November 1991.

9 5 The concept of an Elected Presidency was first proposed in the 1988 White Paper and subsequently refined in the 1990 White Paper. As evident from the titles of the White Papers, the Elected Presidency was designed primarily to meet two concerns of the Government, namely, how to ensure that no government, present or future, would squander the nation’s reserves and to ensure that the integrity of the public service would be preserved. The 1990 White Paper also identified three additional safeguard roles for the Elected President for which he would also be conferred discretionary powers. They were as follows:

10 (a) to give or refuse his concurrence to any decision by the minister to continue to detain a person under the Internal Security Act (Cap 143) made against the recommendation of an Advisory Board;

11 (b) to cancel or vary a restraining order made under the Maintenance of Religious Harmony Act (Cap 167A, 1991 Ed) where the minister acts contrary to the advice of the Presidential Council on Religious Harmony; and

12 (c) to concur with the decision of the Director of CPIB to proceed to investigate any minister for corrupt practices where the Prime Minister has refused his consent to such an inquiry or investigation.

13 6 The 1990 Bill was passed on 3 January 1991 and contained, inter alia, the two new provisions, namely, arts 5(2A) and 22H(1), which give rise to this Reference.

14 7 Article 5(2A) provided as follows:

15 Unless the President, acting in his discretion, otherwise directs the Speaker in writing, a Bill seeking to amend this clause, arts 17 to 22, 22A to 22O, 35, 65, 66, 69, 70, 93A, 94, 95, 105, 107, 110A, 110B, 151 or any provision in Part IV or XI shall not be passed by Parliament unless it has been supported at a national referendum by not less than two-thirds of the total number of votes cast by the electors registered under the Parliamentary Elections Act.

16 8 Article 22H(1) provided that:

17 The President may, acting in his discretion, in writing withhold his assent to any Bill passed by Parliament (other than a Bill to which art 5(2A) applies) if the Bill provides, directly or indirectly, for the circumvention or curtailment of the discretionary powers conferred upon him by this Constitution.

18 9 When the 1990 Bill was passed, the Prime Minister accepted the Select Committee’s recommendation to suspend the operation of art 5(2A). At the Third Reading of the 1990 Bill, the Prime Minister, Mr Goh Chok Tong said:

19 The Select Committee has quite rightly said that we should give ourselves a grace period for making amendments in the light of actual implementation. Such amendments ought not be subject to the strict provisions of a referendum set out in new art 5(2A). Hence, new art 5(2A) should be brought into operation only after this period of adjustments and refinements. I agree with this comment. But the Select Committee was probably too optimistic in believing that a period of two years would be enough to iron out all the problems. I favour giving ourselves more time, to avoid having to go to referendum on procedural and technical provisions. I suggest we give ourselves at least four years for adjustments, modifications and refinements to be made.

20 10 The suspension of the operation of art 5(2A) has given rise to a doubt as to the scope of art 22H(1). The Government now wishes to make some adjustments to the system by seeking to amend, inter alia, art 22H to restrict the President’s powers thereunder to non-constitutional Bills which provide directly or indirectly for the circumvention or curtailment of the President’s discretionary powers conferred upon him by the Constitution.

21 The case for the Government

22 11 In summary, it is the Government’s case that art 22H(1) does not affect the legislative competence of Parliament to enact any law to amend that article and that it does not empower the President to withhold his assent to such a Bill. The argument is as follows.

23 12 The general basis of the Government’s case is that irrespective of whether art 5(2A) is or is not in force, the scope of art 22H(1) was intended by Parliament at the time of its enactment to be restricted and is still restricted to non-constitutional Bills of Parliament of the character described therein and thus all constitutional Bills are outside its scope of operation.

24 13 The more specific basis of the Attorney General’s case is that the scope of art 22H(1) was not intended by Parliament at the time of its enactment to cover and still does not cover any constitutional Bills within art 5(2A) although art 5(2A) is not in force.

25 14 As such the legislative intent was to enact art 5(2A) and art 22H(1) as mutually exclusive provisions.

26 15 The specific issue raised by the Government is whether the scope of art 22H(1) was intended by Parliament to cover any constitutional Bills which fell within art 5(2A). Although art 5(2A) has not been brought into operation, it does not follow that the parenthetical words in art 22H(1) ‘other than a Bill to which art 5(2A) applies’ have no meaning attached to them or that they cannot be given legal effect to.

27 16 In adopting a purposive interpretation of the Constitution in accordance with s 9A of the Interpretation Act (Cap 1), the court would be entitled to look at all legislative materials to ascertain the meaning of any provision of a written law, whether or not that provision was ambiguous. It would allow the court to modify or reject the literal meaning of any provision to give effect to such purpose or object, and to change the legislative words to achieve that purpose or object, once the intention of Parliament was ascertained. In this case, the literal rule of interpretation should not be applied to interpret art 22H(1) as its language is ambiguous and its scope uncertain particularly when read in the context of various other articles in the Constitution.

28 17 The intention of Parliament when both arts 5(2A) and 22H(1) were enacted was that the President would have no power to withhold his assent to any Bill within the scope of art 5(2A). The Government’s case is supported by the following arguments.

29 18 First, although art 5(2A) is not yet in force, the suspended provision which has not been repealed represented the will of Parliament. Bearing in mind that art 5(2A) and art 22H(1) were enacted at the same time, Parliament would not have enacted art 5(2A) and the President assented to the Bill containing it if it did not intend that article to become part of the law of the land. As such the court must recognize its status as embodying the will of Parliament until it is amended or repealed. The Attorney General relied on the case of A-G v Lamplough where Brett LJ said:

30 … for what we have to consider, not what was the construction of the first statute, but what is the effect of the repealing statute. We cannot tell what is the effect of the latter without looking at the meaning of the statute which it has repealed. We must treat it as we treat all statutes for the purpose of construing them; we must look at the facts which were existing at the time the Act passed to see what was its meaning.

31 19 Although that case dealt with the repeal of some of the words of the statute, it was argued that it should apply a fortiori in the present case. Article 5(2A), albeit not in force, continues to have the same meaning and scope as at the time of its enactment; likewise art 22H(1), including the parenthetical clause.

32 20 Secondly, this intent was manifested in the parenthesis to art 22H(1) itself. Hence, the President’s veto power under art 22H(1) cannot enlarge itself by reason only of art 5(2A) not being in force as, at the time of enactment, art 22H(1) did not confer such a wide veto power on the President.

33 21 Thirdly, from a reading of the White Papers and other ministerial statements, the intention of Parliament in passing the 1990 Constitutional Bill was to create an Elected Presidency as a check on the executive branch of government with respect to the spending of national reserves and the appointments of key personnel in the public services. Relevant excerpts from the 1988 White Paper which indicated this intention are as follows:

34 18(a) … Parliamentary system should be preserved. The Prime Minister and Cabinet should keep the initiative to govern the nation. … Any constitutional checks and safeguards should be confined to the two stated areas, leaving the Prime Minister and Cabinet the full freedom to govern in all other respects.

35 …

36 20 The President will be entrusted with the duty of protecting the Republic’s financial assets, and preserving the integrity of the public services. He will not be an executive President, unlike the President of France or Sri Lanka. The Prime Minister and Cabinet will continue to govern the country under our parliamentary system of government.

37 …

38 33 To safeguard our national reserves and assets, and the integrity of the public services, it is proposed to create an Elected President who will serve as watchdog or custodian in these two areas. The Parliamentary system of government will not be altered. The Prime Minister and his Cabinet will govern the nation. Even in these two areas, the Prime Minister and his Cabinet still take the decisions, but they must seek the President’s concurrence. If the President does not concur, the government which is convinced of the rightness of its actions can take the issue to the people.

39 34 The power of the President to grant or withhold his concurrence in these two areas amounts to a two-key safeguard mechanism. The Prime Minister and Cabinet will possess one key and will take the initiative. For their decision to be valid, the second key must be used; namely, the President must concur.

40 …

41 47 As is now the case, the assent of the President will be required before Bills become law and such assent will be given on advice. However, he can refuse to give assent in respect of two types of legislation, namely, where the legislation is designed to circumvent or curtail the powers of the President to exercise his custodial role in financial assets and his safeguard role in appointments to the public service and statutory boards. If there is any question whether a Bill does or does not affect these two items or is otherwise inconsistent with the provisions relating to the President, the matter will be decided by the courts.

42 22 The 1990 White Paper further elaborated as follows:

43 46 The President can withhold his assent to any Bill (other than one governed by the provisions on amendments to the President’s powers) which is designed to circumvent or curtail his discretionary powers under the Constitution. When the President does so, the Prime Minister may refer the Bill to the High Court to determine whether it is indeed designed to circumvent or curtail these Presidential powers. If the High Court rules that it is not, the President shall be deemed to have assented to the Bill.

44 47 To entrench the President’s safeguard powers, if the Government subsequently intends to amend the Constitution to change these provisions, the President can require the amendments to be put to a national referendum, and to take effect only if two-thirds of the votes cast support it.

45 48 To ensure that the Presidential custodial powers may not be easily removed by ordinary constitutional amendments, it is proposed that the changes to the President’s powers be incorporated in Part III of the Constitution. The consequence will be that subsequent amendments to these provisions of the Constitution will have to be confirmed by a two-third majority of the total electors at a referendum if the President is of the view that the amendments negate the constitutional safeguards. Provision will be made in the Constitution accordingly to require all constitutional amendments to the proposed Part III to be subject to confirmation by a two-third majority of the total number of electors at a referendum, if he so directs.

46 23 Although the ‘two-key’ safeguard mechanism was meant to be installed to protect the custodial powers of the President, it was submitted that the legislative scheme was that the President would not have a permanent right to possess the key for all time. Until art 5(2A) was brought into operation, the Government, with due support of Parliament, had the power to demand the return of the President’s key. When art 5(2A) was brought into operation, the Government, if supported by the electorate, had the power to demand the return of the President’s key in the event of any disagreement between the President and the Government over the use of the President’s key. In either situation, the President could not refuse such a demand. This further supported the contention that art 22H(1) was never meant to affect constitutional Bills falling within the scope of art 5(2A). The purpose of not bringing art 5(2A) into operation was to allow Parliament to enact any art 5(2A) Bill without having to face the prospect of a referendum.

47 24 It was further pointed out that the word ‘applies’ in the parenthetical clause was to identify the class of Bills to be excluded from the ambit of art 22H(1). Its meaning and effect were not dependent on art 5(2A) being in force, so long as it existed as an integral part of the parenthetical clause.

48 25 On a more general basis, the Attorney General submitted that art 22H(1) only applied to non-constitutional Bills. In coming to that conclusion, two aids of construction were relied on, namely, ministerial statements and the White Papers, and other articles in the Constitution itself.

49 26 First, the Attorney General set out the relationship between art 22H(1) and various other provisions in the Constitution.

50 27 According to his submission, the plenary power of Parliament to amend the Constitution was expressed in art 5(1) to be subject to art 5 itself and art 8. By implication, and applying the expressio unius canon of construction, art 5(1) was not subject to any other article of the Constitution, including art 22H, as otherwise, art 5(1) would have been amended to expressly include art 22H(1).

51 28 As such, it would logically follow that art 5(2A) would not fall under art 22H(1) as this was consistent with both the wording in art 5(1) and the parenthetical words in art 22H.

52 29 The above arguments were reinforced by the relationship between arts 8 and 22H. Article 8 was not, in terms, subject to art 22H(1), and art 8 was not a provision within the scope of art 5(2A). In principle, it was possible for a Bill within the ambit of art 8 to be passed by Parliament in accordance with its terms which directly or indirectly circumvented or curtailed the President’s discretionary powers. If the subject matter of art 8 was not within the scope of art 22H(1), then likewise, the subject matter of art 5(2A) could not conceivably be within the scope of art 22H(1). Furthermore, the status of art 8 supported the Government’s case that art 22H(1) could not apply to constitutional Bills outside the scope of art 5(2A). If art 8, which was one of the many constitutional provisions outside the scope of art 5(2A), was not subject to art 22H(1), then any contention that art 22H(1) covered constitutional provisions outside the scope of art 5(2A) was without substance.

53 30 This, it was argued, was further supported by the context of art 21. The effect of arts 21(1) and 21(3) was that, except as provided by the Constitution, the President shall, in the exercise of his functions under the Constitution or any other written law, act in accordance with the advice of the Cabinet or of a minister acting under the general authority of the Cabinet. Article 21(2) then listed the functions of the President in respect of which he may act in his own discretion.

54 31 Hence art 21(2)(c) was nothing more than a listing of the discretionary powers of the President and was not an enabling provision. First, it was argued that a Bill seeking to amend art 22H was not and could not be a Bill under art 22H(1). Such a Bill related to or affected art 22H but was not under it and art 22H(1) did not expressly include it as such. Secondly, it was argued that the Bills which came within the ambit of arts 22E, 144(2) and 148A were ordinary Acts of Parliament and pertained to non-constitutional matters. Thus, by analogy and applying the underlying basis of the noscitur a socii canon of construction, its application to art 22H(1) should lead to the same result. Thus, the expression ‘any Bill’ used in art 21(2)(c) in relation to art 22E, 144(2) and 148(A) should have the same meaning when used in relation to art 22H(1), that is, to a non-constitutional Bill.

55 32 It was further submitted that the grant of the specific discretionary powers to the President under the 1991 Act was not and did not intend to make him the executive Head of State. The President was to remain a constitutional Head of State with specific custodial roles in the governance of the state and clothed with discretionary powers to discharge such roles. This position was spelt out in the 1988 White Paper (which has been set out above), in particular, paras 18(a), 20 and 33.

56 Case for the Presidency

57 33 Counsel for the Presidency was in agreement that a purposive approach should be adopted in interpreting the scope of art 22H(1). However, the purposive approach here justified a literal interpretation in accordance with the ordinary and natural meaning of the words used as there was no ambiguity in the language of art 22H(1). Counsel for the Presidency cited a number of authorities to back this proposition, in particular, Comptroller of Income Tax v GE Pacific Pte Ltd, where the Court of Appeal stated:

58 In any question of statutory interpretation, the first and most important factor is the literal meaning of the words of the provision.

59 34 Accordingly, the court should examine the words of the statute first, bearing in mind that the words of a minister in Parliament were not the words of a statute although Parliamentary reports would greatly facilitate the court in determining the intention of Parliament behind a certain enactment which was ambiguous or obscure or the literal meaning of which would lead to an absurdity.

60 35 Counsel for the Presidency agreed with the Attorney General that the intention of Parliament in passing the 1990 Bill was to create an Elected Presidency which would form a check on the executive branch of the government with respect to the spending of reserves and the appointment of key personnel in the public services.

61 36 However, it was contended that, in order for the institution of the Elected Presidency to function properly, the President must have the power to protect his constitutional powers from curtailment or circumvention by the executive branch of government. This was provided in the form of the ‘two-key’ mechanism under arts 5(2A) and 22H(1) of the Constitution and the intention was also evident from para 47 of the 1988 White Paper and para 46 of the 1990 White Paper. As the explanatory statement of the Constitution (Amendment No 3) Bill 1990 (No 23/90) stated:

62 The new art 22G [now art 22H] confers upon the President the power to withhold his assent to any Bill passed by Parliament which is designed to circumvent or curtail the discretionary powers conferred upon the President by the Constitution.

63 37 It was submitted that the 1990 Bill was put to Parliament on the basis that it was deliberately crafted to ensure that the system would be hard to dismantle at the hands of the Executive as was stated by the then First Deputy Prime Minister, Mr Goh Chok Tong, on moving the second reading of the Bill. Hence, there would have been no point in making it difficult to remove the President if the same result could be achieved by curtailing or circumventing the President’s powers.

64 38 When the Select Committee on the Constitution recommended that art 5(2A) should not be brought into force until some years later, nothing was said about art 22H nor was the President’s power of veto under art 22H(1) referred to. The concern with art 5(2A), it was argued, was that procedural and technical changes should not have to go to referendum.

65 39 To further corroborate the point, when Mr Ong Teng Cheong was sworn in as President, the Prime Minister Mr Goh Chok Tong said:

66 On 3 January 1991, during the third reading of the Constitutional Amendments, I stated my commitment to safeguard Singapore’s long term future, to prevent it from being ruined or bankrupted by an irresponsible or unscrupulous government. I said that I was putting my money where my mouth was because I was subjecting my government to the new checks and balances. We were prepared to have our powers audited by a President and a Council of Presidential Advisors for the good of Singapore. I added that, in doing so, my government would in fact be clipping its own wings … I believe it is right to restrict some of the powers of the Executive in the long term interests of Singapore.

67 40 Looking then at the statute itself, it was clear that under art 22H(1), the President may veto any Bill which curtailed his discretionary power, except Bills to which art 5(2A) applied. Counsel for the Presidency sought to illustrate the interrelationship between art 5(2A) and art 22H(1) by drawing an analogy to an ancient Roman defence called the ‘testudo’. This comprised a protective screen formed by a body of troops in close array with overlapping shields and, if one shield should fall away, the other shields would move forward to protect the body of the cohort.

68 41 Article 5(2A) gave protection to the core provisions of the Constitution by providing for a national referendum. Article 22H(1) interlocked with art 5(2A) so that anything which was not covered by a national referendum under art 5(2A) would be protected by a Presidential veto under art 22H(1). Since art 5(2A) did not ‘apply’ to anything as it was not yet in force, it was submitted that the President would be entitled to veto any Bill, constitutional or non-constitutional, that sought to curtail or circumvent his powers and that would include a Bill seeking to amend art 22H itself.

69 42 Counsel for the Presidency contended that it was incorrect to say that the President’s assent to a Bill was merely a formality. Article 21(2) clearly stated that the President could withhold his assent in the matters set out under sub-s (c). Similarly, under art 5(2), Parliament could not pass a Bill unless they obtained a two-third majority of the members of Parliament. Even so, it would still have to go to the President for his assent in accordance with art 58(1)(2) and the President could still withhold his assent under art 22H(1) read in the light of art 21(2)(c). This was consistent with Parliament’s intention and there was thus no contradiction between art 5(1) and art 22H(1). This also explained why art 22H was not mentioned in art 5(1) and 5(2) as the process was self-explanatory.

70 43 The Government’s contention was that if art 22H did not allow the President to override art 8, then similarly, art 22H could not apply to art 5(2A). Counsel for the Presidency was in agreement that the President could not veto a Bill that had been validly passed under art 8. However, the Attorney General’s contention would only hold weight if art 5(2A) was in force, which, it was submitted, was not the case.

71 44 To sum it up, the case for the Presidency was that, as art 5(2A) was not in force, it did not apply to anything. Thus art 22H(1) gave the President a power to withhold his assent to any Bill, constitutional or non-constitutional, which would circumvent or curtail his discretionary powers, including a Bill which would seek to modify art 22H itself. It was also pertinent to note that there was no reason for the Government to wish to amend art 22H to restrict the President’s powers to non-constitutional Bills if it already applied only to Bills of that class.

72 The Tribunal’s answer

73 Statutory interpretation

74 45 It is well established and not disputed by either parties that a purposive interpretation should be adopted in interpreting the Constitution to give effect to the intent and will of Parliament. The principle to be applied is that the words of the Act are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament: EA Driedger, Construction of Statutes (2nd Ed, 1983) p 87. The intention is to be found at the time the law was enacted or in some circumstances when it subsequently reaffirms the particular statutory provision — Dimozantos v The Queen (No 2).

75 46 This is also evident from s 9A of the Interpretation Act (Cap 1) which states:

76 (1) … an interpretation that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to an interpretation that would not promote that purpose or object.

77 (2) Subject to subsection (4) … if any material not forming part of the written law is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material —

78 (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law; or

79 (b) to ascertain the meaning of the provision when —

80 (i) the provision is ambiguous or obscure; or

81 (ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law leads to a result that is manifestly absurd or unreasonable.

82 …

83 (4) In determining whether consideration should be given to any material in accordance with subsection (2), or in determining the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to —

84 (a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law; …

85 47 This is clearly an instance where resort to contemporaneous speeches and documents is sanctioned:

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

87 48 In Mills v Meeking, Dawson J went further. In discussing s 35 of the Interpretation of Legislation Act 1984 of Victoria [which corresponds with s 9A] he said:

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

89 49 In the circumstances, it would be wrong to adopt a literal approach as suggested by counsel for the Presidency, even if art 22H(1) was not ambiguous or inconsistent, if the literal approach did not give effect to the will and intent of Parliament.

90 Relationship between art 5(2A) and art 22H(1)

91 50 In dealing with the interpretation of art 22H(1), it would be best to look first at the effect of art 5(2A) on the scope of art 22H(1).

92 51 We are in agreement with the Attorney General that although art 5(2A) is not in force, the suspended provision represented the will of Parliament. In Gomez v R, the Grenada Court of Appeal adopted the following statement from Rusell’s Legislative Drafting and Forms (4th Ed, 1938) pp 56–57, which we now quote:

93 The question has arisen as to how an Act, the operation of which is suspended under a suspensory section, should be dealt with, if it is desired that it should not come into effect. An Act which has reached the statute book, but is not brought into operation, is as much an integral part of the statute law as an Act which has been put into effect. The Act is an Act passed and assented to. One of the provisions provide for suspension; but the Act is nevertheless an Act, suspended in operation. It can, therefore, be repealed, and that is what should be done to get rid of it.

94 52 In R v Secretary of State for the Home Department ex p Fire Brigades Union, Hobhouse LJ said:

95 An Act once passed … is on the Statute Book: it is Statute. But it is a confusion to say that a provision of the Statute is thereby necessarily part of the law of the United Kingdom. Whether or not a provision becomes part of the law depends on whether and when it comes into force.

96 53 Sir Thomas Bingham added:

97 Parliament intended ss 108–117 and the Schedules to become part of the law of the land. If Parliament had not intended that, both Houses would not have approved and the royal assent would not have been given to a Bill containing those provisions. The enactment of the sections must be seen as clear parliamentary approval of a statutory criminal injuries compensation scheme as there provided for.

98 54 In Ex p Fire Brigades Union, the Court of Appeal gave effect to the will of Parliament as expressed in the suspended provisions in the Criminal Justice Act 1988 and held that the Home Secretary could not ignore the will of Parliament and bring into force a radically different compensation scheme from that intended by the suspended provisions. The decision of the Court of Appeal was recently affirmed in the House of Lords.

99 55 In adopting the principles enunciated above, we are of the opinion that Parliament had intended art 5(2A) to become part of the law, otherwise it would not have been enacted and the assent would not have been given to the Bill. This was further supported by the fact that the parenthesis to art 22H(1) gave effect to that intention, bearing in mind that both art 5(2A) and art 22H(1) were enacted at the same time. We are disposed to agree with the Attorney General that the President’s veto power under art 22H(1) could not enlarge itself by reason only of art 5(2A) not being in force as, at the time of enactment, art 22H(1) did not confer such a wide veto power on the President. As such, we cannot accept the analogy to a ‘testudo’ drawn by counsel for the Presidency, however novel and persuasive that argument may be.

100 56 Counsel for the Presidency then sought to argue that the word ‘applies’ in the parenthesis of art 22H(1) had the connotation in the sense that art 5(2A) would ‘apply’ only if it was in force. Since it had not been brought into force, art 5(2A) ‘applied’ to nothing. With respect, we find this argument a little tenuous. On a plain interpretation of the language of the parenthesis to art 22H(1), the word ‘applies’ was meant to identify the class of Bills which was to be excluded from the ambit of art 22H(1), which incidentally, consisted of constitutional Bills. It was not intended that its meaning and effect were dependent on art 5(2A) being in force.

101 57 Although counsel for the Presidency submitted that the legislative intent was to give the President powers to protect his discretionary powers from circumvention or curtailment, we would point out that this is not entirely correct. The Elected Presidency was the mechanism by which Parliament intended to check executive abuse on spending of financial reserves and key appointments in the public services as evident from the 1988 and 1990 White Papers as well as ministerial statements made preceding the enactment of the 1990 Act. The ‘two-key’ mechanism applied to the use of such discretionary powers of the President.

102 58 This has to be distinguished from the mechanism which Parliament intended to use to protect the President’s discretionary powers. The ‘two-key’ mechanism had no bearing on the removal of such powers, in which situation the power would then be handed over to the electorate under art 5(2A). This was consistent with the reason for which the Government decided to suspend the operation of art 5(2A) so that it would be able to make changes to the system, be it substantive, technical or procedural, without having to face the prospect of a referendum. As such, there was no interregnum contemplated by Parliament that, if art 5(2A) was suspended from operation, the President would under art 22H(1) assume the role of the electorate under art 5(2A).

103 59 Thus we are of the view that art 22H(1) would not apply to any Bills which fall within the scope of art 5(2A), and we note that the scope of art 5(2A) would essentially cover all constitutional Bills.

104 Conclusion

105 60 For the reasons we have given, our opinion and answer to the question referred to us is as follows. Although art 5(2A) of the Constitution has not been brought into operation, the President has no power under art 22H(1) of the Constitution to withhold his assent to any Bill seeking to amend any of the provisions referred to in art 5(2A), and specifically to any Bill seeking to amend art 22H to restrict the President’s powers thereunder to any non-constitutional Bill which provides directly or indirectly for the circumvention or curtailment of the President’s discretionary powers conferred upon him by the Constitution.

106 Answer to the question negative.

107 Reported by Audrey Lim