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    06:09 PM Leong Hoi Seng Victor (Justices’ Law Clerk, Supreme Court, Singapore)

    The Minority’s Approach to Statutory Interpretation in AG v Ting Choon Meng better accords with the Interpretation Act

        

    This commentary deals only with the process of statutory interpretation

    In AG v Ting Choon Meng [2017] SGCA 6, a majority of the Court of Appeal found that section 15 of the Protection from Harassment Act (Cap 256A, 2015 Rev Ed) (“PFHA”) could not be invoked by the Government. The minority found otherwise. The main difficulty was that section 15 was a remedy available to “subject[s]”, while the other remedies in the PFHA were only limited to “victim[s]”. The question is whether this distinction meant that the Government was a “subject” which could invoke the remedy in section 15.

    In coming to their respective conclusions, the majority and minority used different approaches towards statutory interpretation. This commentary suggests that the minority’s approach to statutory interpretation should be preferred over the majority’s approach as it better accords with section 9A of the Interpretation Act (Cap 1, 2002 Rev Ed) (“IA”). I will not touch on the policy merits of the outcomes reached, or whether it was just and equitable to make the order on the facts.

    I first outline the crucial differences in the approaches adopted by the majority and the minority. I then set out the reasons in support of the minority’s approach. However, there are still some gaps that remain in the minority’s proposed framework, which I briefly address.

    Differences in approach between majority and minority

    The common ground between the majority and minority approaches is that section 9A requires the Court to prefer an interpretation that promotes the purpose of the statute over an interpretation that does not (at [18] and [52]).

    The difference between the approaches lies in how exactly this purposive approach is to be carried out, and related to that, when exactly materials not forming part of the written law (“extraneous materials”) may be used. The majority’s approach is that extraneous materials are just one piece of evidence to consider along with the text and context of the legislation. There are no preconditions to admitting such evidence. This entire process is used to determine the purposive meaning of the provision or statute (at [18]). Hence, the majority found that although the word “subject” in section 15 was wider than the word “victim” in the other sections, this still did not include the Government, as the Parliamentary debates indicated that the drafters still intended to confine the term “subjects” to natural persons (at [20]-[28]).

    In contrast, the minority judgment prescribes clear preconditions for invoking extraneous materials. A three-step framework is proposed (at [59]):

    1. First, the Court must consider the possible textual meanings of the legislation against its purpose, and then choose one meaning based on the purpose. This is the purposive meaning.
    2. Second, the Court must then decide whether to use extraneous materials. Where the purpose clearly supports one 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. Third, the 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]).

    This led to the minority concluding that limiting section 15 to natural persons alone would not even be a permissible reading of the text. This is because it would limit the statements to borderline harassment and the potential beneficiaries to natural persons – even though section 15 contains no such limitation (at [78]-[79]). Since the text of section 15 was clear, the Parliamentary debates could not be used to depart from it (at [93]).

    The minority’s approach is more consistent with section 9A

    The starting point is that an interpretation which is consistent with every word in section 9A should be preferred over an interpretation that renders some words meaningless. This is because the drafters of the legislation are unlikely to insert redundant words into section 9A. This is the principle of effectiveness (Oliver Jones, Bennion on Statutory Interpretation, 6th ed (UK: LexisNexis, 2013) at 1031-1032). The minority’s approach should be preferred over the majority’s, since the majority’s approach means that some words in section 9A would be otiose.

    First, the majority’s approach means that section 9A(2) would be redundant (as noted by the minority at [94]). Section 9A(2) specifies a list of three situations when extraneous materials may be used. The majority’s approach is that there are no preconditions to using extraneous materials. Section 9A(2) was not mentioned (although it must be noted that section 9A(2) did not appear to have been argued). This must mean that under the majority’s approach, each time parties may want to use extraneous materials, this would invariably fall within one of the three situations. But this cannot be the case. Otherwise, it would be pointless to set out these situations in the first place. There must be at least one other situation – not stated in the section – where one might wish to use extraneous materials, but where their use is not permitted. As the minority found, this is the situation where extraneous materials are used to depart from the purposive meaning.

    Second, the minority’s step-by-step approach is more consistent with the words used throughout section 9A. Sections 9A(2)(a) and 9A(2)(b)(ii) allow extraneous materials to be used when 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” (the purposive meaning) is either confirmed or disregarded for being absurd. But in order to confirm or disregard a particular meaning, there must be the prior step of determining what this meaning is in the first place.

    This prior step is described in section 9A(1), which requires the Court to prefer “an interpretation” which promotes the purpose over one that does not. This is the process of ascertaining the purposive meaning. The distinction between the phrase “an interpretation” here and the phrase used in sections 9A(2)(a) and 9A(2)(b)(ii) confirms this. This is further confirmed by section 9A(2)(b)(i), which also allows the Court to use extraneous materials to ascertain the meaning of “the provision” where it is ambiguous – in other words, where the prior step of finding the purposive meaning yields no results. This broadly corresponds to the minority’s approach.

    Third, the minority’s approach also explains the phrase “if any material not forming part of the written law is capable of assisting in the ascertainment of the meaning of the provision” in the opening words of section 9A(2). This phrase is clearly a precondition to using extraneous materials – the materials must be of a certain quality. This is similar to the minority’s view that the material must be capable of shedding light on the purpose of the provision or statute (at [63]). This point was not addressed by the majority.

    In my view, the same considerations that the minority considered relevant to assigning weight to the material are also relevant here: [1] whether the material discloses the mischief that the statute was meant to cover; [2] whether the material is clear and unambiguous, in the sense that the Court need not perform a secondary step of interpretation; and [3] whether the material was directed at the very point in the interpretative question. As the minority noted, these concerns arose from English cases concerning admissibility – from which the inspiration for section 9A was derived (at [70]). Insofar as these concerns reflect a qualitative threshold for the material, it is consistent with the requirement in section 9A(2) that the material be capable of shedding light on the object and purpose which would otherwise, again, be meaningless.

    This approach does not depart from the established principle that extraneous materials can be resorted to even where there is no ambiguity (e.g. PP v Low Kok Heng [2007] 4 SLR(R) 183 at [46]). The “no ambiguity” situations here are covered by sections 9A(2)(a) and 9A(2)(b)(ii), where the purposive meaning is not ambiguous and only needs to be either confirmed or ascertained (if absurd) by the extraneous materials.

    Potential problems with the minority’s approach can be resolved

    There are three potential objections to the minority’s approach. The first is a textual one. Section 9A(2) provides that consideration “may” be given to the extraneous materials for one of the three stated situations. It does not provide that it “may only” be done in such cases. But this is not determinative. The text yields to the context. When the effect of giving the word “may” its strictest meaning is to deprive the rest of the section of any functional meaning, then this strict meaning should not be preferred. In fact, if we look closely at the text, where Parliament meant for a non-exhaustive list within section 9A itself, it has used the qualifier “include” (section 9A(3)). Even on a textual comparison alone, the word “may” alone in section 9A(2) does not carry the same heft.

    Second, the definition of “ambiguity” is, ironically, unclear. This problem is arguably exacerbated by the minority judge’s finding on the statutory interpretation point on the facts, where he appeared to have concluded that the purposive meaning was “clear” because there were no qualifiers to the text of section 15 of the PFHA. However, it does not follow that the structure of section 9A should be ignored merely because one component of it is not satisfactorily defined (even if this is the case). The correct response would be instead to define the phrase judicially.

    This leads us to a third problem: assume that we have arrived at a purposive meaning via the minority’s approach which we assume is free from ambiguity on its face. We then attempt to use section 9A(2)(a) to confirm the meaning with extraneous materials. But when we try to do so, we then discover that there is some ambiguity because the extraneous materials either make the initial meaning unclear, or outright contradicts it. What then? There are two options available:

    1. First, this is an instance of departure from the ascertained purposive meaning. The Court must backtrack and ignore the extraneous materials.
    2. Second, this gives rise to ambiguity within the meaning of section 9A(2)(b)(i), where the extraneous materials can then be used.

    Between these options, the second must be rejected. It would transform the phrase “the provision” in section 9A(2)(b)(i) into the phrase “the ordinary meaning” in sections 9A(2)(a) or 9A(2)(b)(ii). And although the first option may seem unsatisfactory to the extent that the Court is ignoring the extraneous materials, but this is not so egregious a fault, considering that section 9A(2) itself contemplates that some extraneous materials may already be left out (if they are not capable of shedding light on the object and purpose), and section 9A(4) spells out explicitly that it is desirable that ordinary persons can rely on the text where it is clear.

    Possible gaps in the minority’s approach

    In the analysis above, I have suggested two possible improvements to the minority’s approach: [1] that the capability requirement in section 9A(2) be defined to include the English developments, and [2] that “ambiguity” be more clearly defined. In addition, I also argue that there is one more restriction on the use of extraneous materials: [3] the type of extraneous materials is not unfettered.

    This restriction is found in section 9A(3). Both the majority and minority judges accepted that this is a non-exhaustive list. While I agree broadly, there are three possible restrictions on this general rule. First, the list of extraneous materials in section 9A(3) should be interpreted ejusdem generis (words of the same kind); the genus (kind) being material officially made by Parliament, such as Parliamentary debates or explanatory statements. This would possibly exclude comments made at press conferences (see e.g. Maldives Airport v GMR Male International Airport [2013] 2 SLR 449 at [38]). This is not a high threshold, given that most extraneous materials referred to are Parliamentary debates, but is a useful threshold because it allows persons to know which types of extraneous materials can be relied on, and where to look. It would not be helpful for persons – and creative lawyers – to thrash through the undergrowth in search of that elusive comment by a Minister in a press release.

    The second restriction is derived from the expressio unius principle (Bennion on Statutory Interpretation at 1124). The extraneous materials named in section 9A(3) exclude materials which are their direct converse. For instance, section 9A(3)(e) provides for “any treaty or other international agreement that is referred to in the written law”. This excludes, by implied exclusion, treaties not referred to in the written law.

    The third restriction can be gleaned from the procedural history of section 9A(3) – being derived from section 15AB(2) of the Australian Interpretation Act 1901. These provisions are entirely identical, except that three items were removed when section 15AB(2) was converted to section 9A(3): [1] reports of Commissions or committees, [2] journals in the Senate, and [3] votes and proceedings in the House of Representatives. Removing the second and third is explicable since these bodies do not exist in Singapore. But the first arguably corresponds to Select Committee Reports, suggesting that these reports cannot be referred to as extraneous materials unless they also come under one of the other limbs.

    Summary of the current position and remaining problems

    I have argued that the appropriate framework to adopt is largely the minority’s, with a few modifications. The position is summarized as follows:

    1. Step 1: Determine the “purposive meaning” by comparing the possible textual interpretations in their context against the purpose of the provision;
    2. Step 2: Determine if extraneous materials are admissible by virtue of the restrictions derived from sections 9A(2)-(3) (namely, whether it is capable of assisting in ascertaining the meaning of the provision, and whether it contravenes the implied restrictions);
    3. Step 3: Determine whether the extraneous materials can be used in the manner sought, i.e. whether it falls within one of three categories in section 9A(2); and
    4. Step 4: Give the appropriate weight to the extraneous materials in determining whether they outweigh the purposive meaning.

    The following problems remain unresolved following AG v Ting Choon Meng:

    1. What is the process to determine the “purpose” of a provision or statute; and where they contradict one another, which prevails? The minority appeared to prefer the purpose of the provision (at [60]-[61]), but the majority proffered no view.
    2. What is the test for extraneous materials being “capable of assisting in the ascertainment of the meaning of the provision” under section 9A(2)?
    3. What is the test for ambiguity under section 9A(2)(b)(i), and correspondingly, the test for manifest absurdity under section 9A(2)(b)(ii)?
    4. How should the Court look at the extraneous materials? The minority cautioned against reading the Minister’s statement as if it were the enactment (at [99]), but there was no further discussion.

    There is one final doctrinal problem which has not been addressed by the Courts: does section 9A apply to itself? Specifically, given that there are two interpretations of section 9A – the majority’s and the minority’s – which do we use to interpret section 9A itself? This question is not explored in this commentary. A preliminary answer is that both approaches yield largely the same result in this case, since my analysis proceeds primarily on the text and documentary context of section 9A. To the extent that I have used the history of the provision in its development from the Australian Interpretation Act, that portion of the analysis may differ based on which approach is ultimately taken.

    * The opinions contained in this commentary reflect the author’s own views and are not to be understood as reflecting the views of the author’s employer.

    ** This blog entry may be cited as Leong Hoi Seng Victor, "The Minority's Approach to Statutory Interpretation in AG v Ting Choon Meng better accords with the Interpretation Act" (13 February 2017) (http://www.singaporelawblog.sg/blog/article/177)

    *** A PDF version of this entry may be downloaded here

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