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Comparison between the Constitutional Amendment Bill, Explanatory Statement and the Final Version of Art 144(1)
Applying the purposive approach, Tan J looked at the relevant materials regarding the enactment of Article 144 and concluded that Article 144 only applies when the Government raises a loan or gives a guarantee, and not when it gives a loan.
In reaching the decision, Tan J looked at three documents, namely, (i) the Constitution of the Republic of Singapore (Amendment No 3) Bill 1990 (Bill 23 of 1990), (ii) the Explanatory Statement with respect to the Bill, and (iii) the amended Constitution, which incorporated Articles 144(1) & (2) in 1991.
From the Bill, Tan J looked at the order of the words “debt, guarantee or loan”, and noted that the words that followed were “incurred, given or raised”. When the arrangement in the Explanatory Statement was later changed to “loan, debt or guarantee”, the words that followed were correspondingly rearranged to “raised, incurred or given”. Tan J found that the linking of “loan” to “raised”, “debt” to “incurred”, and “guarantee” to “given” was indicative of Parliament’s intention that both the words “given” and “raised” in Article 144(1) were not meant to apply to “loan”.
Tan J’s conclusion on this point was buttressed by the fact that when Article 144 was enacted, the Select Committee recommended for the word “debt” to be removed from Article 144(1). This resulted in the corresponding deletion of the word “incurred”. Tan J found this confirmatory of Parliament’s intention to link the words, and that only the giving of guarantees and raising of loans by the Government fall within the ambit of Article 144.
Legislation referred to in Article 144(3) supports the AG's interpretation of Art 144 of the Constitution
Article 144(3) listed a number of statutes that Article 144(1)(b) applied to. Amongst these, Tan J found that two of the statutes, namely the Financial Procedure Act[1] (“the FPA”) and the Bretton Woods Agreements Act[2] (“the BWAA”), reinforced his conclusion that the giving of loans by the Government did not fall within the scope of Article 144. The FPA was passed after Article 144 and Tan J noted that s 15(1) FPA concerned the giving of guarantees, while s 15(2) FPA governed the raising of loans. Further, upon examination of s 9 of the BWAA, Tan J found that the requirement of presidential concurrence for the raising of loans but not the giving of loans bolstered the view that Article 144 does not concern the Government’s giving of loans.
The Reddendo Singula Singulis Principle
Tan J also stated that by using one of the canons of statutory interpretation, reddendo singula singulis, the conclusion would be that loans given by the Government would fall beyond the scope of Article 144. The canon states that where a complex sentence has more than one subject and more than one object, it may be the right construction to render each to each. Applying this to Article 144, the giving of loans by the Government falls outside its ambit.
Jeyaretnam's comments
In his blog post dated 13 November 2013[3], Jeyaretnam responded to the Court of Appeal’s judgment and claimed that the judgment was evidence that the “[Singapore] [G]overnment is to all intents and purposes above the law”. He stated that the judiciary, in handing down such a judgment, is “essentially subordinate to the executive”.
Jeyaretnam responded to both the Article 144 issue and the question of locus standi. With regard to Article 144, Jeyaretnam opined that the Court of Appeal had misunderstood and misinterpreted him, and that the judges had made several “basic” errors with regard to basic modern finance theory.
In a subsequent blog post dated 28 January 2014[4], Jeyaretnam made reference to Deputy Prime Minister and Minister for Finance Tharman Shanmugaratnam’s motion in Parliament to move for an increase in Singapore’s subscription to the International Bank for Reconstruction and Development, and claimed that Shanmugaratnam’s explanation was contradictory to the information that was given by the MOF and the basis on which the Government had won its case. Jeyaretnam further claimed that this was indicative of the Singapore Government “pulling the wool over the eyes of the judges” and likened the judges to “spectators at a magic show” who were “happy to be taken in by this gross misdirection.”
- ^ Financial Procedure Act (Cap. 109, 2012 Rev. Ed.) ("FPA")
- ^ Bretton Woods Agreements Act (Cap. 27, 2012 Rev. Ed.).
- ^ Jeyaretnam, Kenneth Andrew (13 November 2013). "The Judgement in the IMF Loan Appeal Confirms Government is Above the Law". Rethinking the Rice Bowl. Retrieved 19 February 2014.
- ^ Jeyaretnam, Kenneth Andrew (28 January 2014). "MOF Tharman World Bank Bombshell". Rethinking the Rice Bowl. Retrieved 19 February 2014.