MOHAN, Mahdev

Institutional Knowledge at Singapore Management University

Singapore Management UniversityInstitutional Knowledge at Singapore Management UniversityResearch Collection School Of Law School of Law3-2015Bilateral investment treaty interpretation: Aninternationalist spirit tempered by context:Government of the Laos People’s DemocraticRepublic v Sanum Investments LtdMahdev MOHANSingapore Management University, mahdevm@smu.edu.sgFollow this and additional works at: https://ink.library.smu.edu.sg/sol_researchPart of the Commercial Law CommonsThis Transcript is brought to you for free and open access by the School of Law at Institutional Knowledge at Singapore Management University. It hasbeen accepted for inclusion in Research Collection School Of Law by an authorized administrator of Institutional Knowledge at SingaporeManagement University. For more information, please email libIR@smu.edu.sg.CitationMOHAN, Mahdev. Bilateral investment treaty interpretation: An internationalist spirit tempered by context: Government of the LaosPeople’s Democratic Republic v Sanum Investments Ltd. (2015). Singapore Law Watch Commentary. 1-7. Research Collection SchoolOf Law.Available at: https://ink.library.smu.edu.sg/sol_research/22811           Issue 1/Sep 2013    Developments in the law on constitutional and statutory interpretation  Vellama d/o Marie Muthu v Attorney-General [2012] SGHC 155, [2012] 2 SLR 1033; [2013] SGCA 39  Benjamin Joshua Ong∗ Summary and digest of holdings Following the expulsion of Mr Yaw Shin Leong, MP for Hougang Single Member Constituency (SMC), from his party, the applicant in Vellama d/o Marie Muthu v Attorney-General [2012] SGHC 155, [2012] 2 SLR 1033 (“Vellama (HC)”); [2013] SGCA 39 (“Vellama (CA)”), a resident of Hougang SMC, sought a declaration that the Prime Minister did not have unfettered discretion in deciding whether and when to call a by-election to fill the vacant seat in Parliament, given that art 49(1) of the Constitution provides that “Whenever the seat of a Member, not being a non-constituency Member, has become vacant for any reason other than a dissolution of Parliament, the vacancy shall be filled by election in the manner provided by or under any law relating to Parliamentary elections for the time being in force.” This note focuses on this substantive issue rather than the procedural issues and issues of locus standi, which the courts also discussed at length. The Court of Appeal, reversing the High Court’s decision, held that, when an elected MP’s seat is vacated during Parliament’s term (a “casual vacancy”), the Prime Minister does not have unfettered discretion as to when to call a by-election, but instead must call one within a “reasonable time” (which is embodied in s 52 of the Interpretation Act: “Where no time is prescribed or allowed within which anything shall be done that thing shall be done with all convenient speed and as often as the prescribed occasion arises.”) However, the Prime Minister can take into account “all relevant circumstances”1 in deciding the time, including “considerations which go well beyond mere practicality”, the specifics of which it is “impossible to lay down”.2 Because the discretion is highly fact-sensitive, the courts will only intervene in exceptional cases.3 The merits of the decision aside, several interesting points arise from the two courts’ different interpretive approaches.                                                             ∗ Final-year student reading for the B.A. in Jurisprudence at the University of Oxford. 1 Vellama (CA), [92]. 2 Vellama (CA), [92]. 3 Vellama (CA), [85].    Issue 1/Sep 2013  2 The High Court’s approach The High Court concluded that the phrase “shall be filled by election” in art 49(1) meant that the seat was to be filled, when it was filled, by the process of election (as opposed to the process of appointment), and not that the event of an election had to be held. This was based on the structure of the Constitution, which was meant to show that the process for filling casual vacancies differs depending on the type of MP (elected MP, NMP, or NCMP) in question.4 More significantly, the High Court held that this view was buttressed by an analysis of the legislative history of art 49(1), starting with its roots in a 1946 Order in Council.5 In particular, an Order in Council in 1955 dictated that casual vacancies “shall” be filled (a) “by appointment” in the case of Nominated Members, or (b) “by election” in the case of Elected Members.6 Provision (b), from which it was clear that “election” referred to a process rather than an event, was the genesis of the present art 49(1). The subsequent removal of provision (a) did not change the meaning of provision (b). Most significantly for present purposes, the then Prime Minister stated during Parliamentary debates in 1965 that the “injunction of holding a by-election within three months”, which had been introduced in 1963 at the insistence of Malaysia, “should no longer apply”; the words “within three months from the date on which it was established that there is a vacancy” were thus deleted.7 The Court of Appeal’s approach The Court of Appeal’s response to this interpretation may be summarised into two points. First, the Court held, in response to submissions that the 1963 debates in Parliament on the Constitution had to be read in context, that “subtext, in its inherent nature, is just as capable of amplifying rather than clarifying any latent ambiguity” and that such latent ambiguity may well exist in the phrase “shall be filled by election”.8 In particular, after a further survey of debates in Parliament, the Court of Appeal noted that no ruling party member had ever denied that there was an obligation to call a by-election at some point in time, even when there may have been occasion to do so.9 In short, there was “no consensus” as to the meaning of the phrase “shall be filled by election”10 despite the Prime Minister’s declarations during debates in Parliament. Second, even if art 49(1) had only mandated that casual vacancies be filled by the process of election and not that the event of an election be held, it did not follow that there was nothing requiring the event to be held or constraining the period within which the event had to be held,11 even though the time-limit clause had been removed in the past.  In addition, the Court of Appeal suggested that the question engaged the “rights of the voters in a Parliamentary system of government”12 which had to be “balance[d]” against the Prime Minister’s discretion; this is a tantalising hint that the standard of review may well be proportionality- rather than Wednesbury-based, although the bar may be high due to the issue’s polycentricity. That having been said, it is not proposed to discuss this point here.                                                           4 Vellama (HC), [78]. 5 Vellama (HC), [89]. 6 Vellama (HC), [96]. 7 Vellama (HC), [108]. 8 Vellama (CA), [66]. 9 Vellama (CA), [68]. 10 Vellama (CA), [72]. 11 Vellama (CA), [73]. 12 Vellama (CA), [85].    Issue 1/Sep 2013  3 Commentary The approach to be taken to constitutional interpretation  Neither court explicitly stated the law on constitutional interpretation. Strictly speaking, it would appear that the interpretive approach should be that in s 9A of the Interpretation Act,13 which art 2(9) of the Constitution provides must apply to constitutional interpretation,14 and which has been held to override “any common law principle of interpretation”.15 This approach is set out in s 9A(1): “In the interpretation of a provision of a written law, 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.” Moreover, s 9A(2) explicitly allows reference to “any material not forming part of the written law” to be made for this purpose, subject to the twin concerns 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” and the “need to avoid prolonging legal or other proceedings without compensating advantage”.16 It would appear that this approach was the one used by the High Court in Vellama; this would explain the extensive reference to legislative history. However, there appears to be another competing approach to interpretation in certain constitutional cases, which the Court of Appeal may have implicitly endorsed: in Minister of Home Affairs v Fisher,17 the Privy Council held that “a constitutional instrument [is to be treated] as sui generis, calling for principles of interpretation of its own” because “full recognition and effect” must be given to “fundamental rights and freedoms”.18 That both approaches to interpretation may subsist concurrently in Singapore law is demonstrated in Taw Cheng Kong, where the High Court applied s 9A to an ordinary statute19 while applying the Fisher approach to art 12 of the Constitution, which was held not to be “limited by the normal rules and maxims applied to the interpretation of ordinary legislation”.20 In Vellama, the Court of Appeal, by suggesting that residents have an “entitle[ment]”21 or “right”22 to representation in Parliament, may be seen as embracing the Fisher approach. On the other hand, if this rights-based analysis were the only possible one, the Court of Appeal would likely not have expended so much effort rebutting the High Court’s analysis (which was evidently based only on the s9A approach). There are at least two other ways of analysing the Court of Appeal’s judgment. First, the Court of Appeal recognised the principle that “[l]egislation rarely pursues a single purpose at all costs… For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation”.23 Second, s 9A(1) refers to the “purpose or object underlying the written law” and not that underlying a “provision of a written law” (emphases added);24 the Court interpreted the scope of art 49(1) with reference to a broad                                                           13 Cap. 1. 14 “Subject to this Article, the Interpretation Act (Cap. 1) shall apply for the purpose of interpreting this Constitution and otherwise in relation thereto as it applies for the purpose of interpreting and otherwise in relation to any written law within the meaning of that Act.” 15 PP v Low Kok Heng [2007] SGHC 123, [2007] 4 SLR(R) 183, [41]. 16 Section 9A(4) Interpretation Act. 17 [1980] AC 319, 329. 18 This was not necessarily implicitly overruled by PP v Low Kok Heng (supra n 16): that case concerned quite another matter, viz. whether penal statutes should be construed differently from other statutes. 19 [1998] SGHC 10, [1998] 1 SLR(R) 78, [38]ff. 20 Ibid, [18]ff. The result was overruled by the Court of Appeal, but the approach to interpretation was not. 21 Vellama (CA), [79]. 22 Vellama (CA), [85]. 23 Carr v Western Australia [2007] HCA 47, (2007) 232 CLR 138, [6]. Cf. Vellama (CA), [76]. 24 R.C. Beckman and A. Phang, “Beyond Pepper v Hart: The Legislative Reform of Statutory Interpretation in Singapore” (1994) 15 Statute Law Review 69, 83.    Issue 1/Sep 2013  4 purpose of establishing a Westminster-style government complete with a right to representation25 rather than merely the intention underlying art 49(1) as seen in isolation. The use of extrinsic materials in interpretation  The Court of Appeal discussed the High Court’s use of extrinsic materials at length. Implicit in the Court of Appeal’s warning about the need for careful evaluation of “subtext” is a recognition of a certain irony in eschewing a literal approach to interpreting statutes but applying a literal approach in construing extrinsic materials used to interpret statutes, and the criticism that the High Court had taken such an approach. After all, s 9A(2) provides that reference to extrinsic materials is only allowed if it “is capable of assisting in the ascertainment of the meaning of the provision” and s 9A(4) further suggests that the court may have to determine the “weight to be given to any such material”.26 On the other hand, the Court of Appeal’s judgment demonstrated the issue of cost and effort which is hinted at by s 9A(4)(b): in order to evaluate the applicability of the (themselves voluminous) Parliamentary materials which were referred to by the High Court (“first-order materials”) as purported statements of intention, or at least (in the case of past versions of constitutional provisions) indications of intention, by ministers, effort had to be spent sifting through other Parliamentary materials in the Court of Appeal (hereafter “second-order materials”) to reveal what was actually borne in mind when these statements or indications were made. The need for argument about the applicability of extrinsic materials is exacerbated by the fact that, in the particular case of the Constitution, relevant extrinsic materials are often ones that were not drafted with s 9A(2) in mind. It is likely that Parliament has felt encouraged after the passing of s 9A in 1993 to endorse clear statements of legislative intent intending that they the courts refer to them. Extrinsic materials before that may, by contrast, be mere debates of “political contention”27 rather than statements of purpose adopted by the Legislature. By contrast, the view in England is that only “clear” ministerial statements of legislative intent may be referred to, failing which the “expense of litigation” would be increased by “long arguments about [the] significance [of other extrinsic materials]”.28 Both courts’ judgments in Vellama demonstrate that such a concern is not unfounded, particularly when it comes to interpreting the Constitution, for which no single definitive statement of purpose may be identified (as one may be in the case of a modern ordinary statute). It is thus submitted that greater judicial attention to the concerns in s 9A(4), such as an explicit discussion of whether there is “compensating advantage” gained by recourse to extrinsic materials, is warranted. The fundamental aim of interpretation The Court of Appeal’s approach toward extrinsic materials reveals more fundamental points. The aim of statutory interpretation is generally thought to be as explained in Black-Clawson International v Papierwerke Waldhof-Aschaffenburg: “We often say that we are looking for the intention of Parliament,29 but that is not quite accurate. We are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true                                                           25 Vellama (CA), [79]. 26 Such evaluation of extrinsic materials is not unprecedented. In Kok Chong Weng v Wiener Robert Lorenz [2009] SGCA 7, [2009] 2 SLR(R) 709, one ministerial statement was held to have been “not intended as an explanation for the ambit of [the statute in question]”. 27 Vellama (CA), [72]. 28 Pepper v Hart [1993] AC 593, 636. 29 In the Singapore context, see generally PP v Low Kok Heng (supra n 16), especially [72] (“s 9A(1) of the Interpretation Act… specifically mandates a purposive interpretation of legislation in accordance with the object underlying the legislation, in other words, the intention of Parliament”).    Issue 1/Sep 2013  5 meaning of what they said.”30 This was echoed in dicta cited in Tan Boon Yong v Comptroller of Income Tax.31 However, the Court of Appeal’s approach in Vellama suggests strongly that this is not a complete statement of the law in Singapore. In seeking to determine the mindset of parliamentarians (e.g. whether there was “consensus” about the meaning of art 49(1)32) by, inter alia, drawing inferences from the Prime Minister’s responses to questions asked to him in Parliament,33 the Court of Appeal was seeking to discern the Legislature’s actual intention. This demonstrated that evaluating the applicability of extrinsic materials which are meant to cast light on “the true meaning of what [the Legislature] said” can itself entail examining exactly “what [the Legislature] meant”; perhaps this is a necessary consequence of the approach in s 9A in the case of words which appear to be statements of legislative intent but are not explicitly marked out as such. It remains an open question whether and when the courts will see recourse to “second-order” Parliamentary material as necessary if they had held that ambiguity has been sufficiently eliminated by recourse to “first-order” material. Moreover, in searching for “consensus”,34 the Court of Appeal implicitly affirmed that, notwithstanding the explicit permission of reference to ministerial statements by s 9A(3)(c), the search ought to be for the intention of the Legislature and not that of individual legislators (in particular, Ministers).35 In other words, the Court of Appeal’s approach is based on the idea that “legislative intent” is not merely a fiction or shorthand for ministerial intent. Quaere to what extent courts will take this into account in the case of ordinary statutes, and either hold phrases such as “the Minister, and in turn Parliament, had enacted the Act” in AAG v AAH36 to have been slips of the tongue or expose them as being shorthand and unpack them, especially if the rate of dissent in Parliament should increase in future due to changes in the political landscape. Conclusion Perhaps the fact that the Court of Appeal ruled on the substantive issue despite having held that the applicant had no locus standi (as a by-election was held after the High Court’s ruling) suggests that the primary concern of the Court of Appeal was the public interest in the merits of the specific case. Nonetheless, it is hoped that the Court of Appeal’s judgment will also pave the way for further exploration of the law on constitutional and statutory interpretation in Singapore, which is perhaps set to become more significant as Singapore has experienced a recent increase in the number of constitutional cases.  About SLW Commentaries SLW Commentaries are short reviews or commentaries of the latest Singapore Supreme Court judgments, taking an analytical and “big picture” approach on legal developments. Although consisting primarily of commentaries on Supreme Court judgments, SLW Commentaries also include well-written articles on recent legislative changes. Interested contributors may write to SLW for more information.                                                           30 [1975] AC 591, 613. 31 [1993] 1 SLR(R) 208, citing at [15] Beswick v Beswick [1968] AC 58, 73–74 (“… we must deduce [Parliament’s] intention from the words of the Act…”) and at [18] Pepper v Hart [1993] AC 593, 634. The court disapproved of the rule in Beswick which prohibited reference to Hansard, but not the general idea that the aim is to give effect to legislative intention as it appears from the statute. 32 Vellama (CA), [72]. 33 Vellama (CA), [68]–[70]. 34 Vellama (CA) at [72]. 35 See generally A. Kavanagh, “Pepper v Hart and matters of constitutional principle” (2005) 120 LQR 98. 36 [2009] SGCA 56, [13]. 

Bilateral investment treaty interpretation: An internationalist spirit tempered by context: Government of the Laos People’s Democratic Republic v Sanum Investments Ltd

Singapore Management University 
Institutional Knowledge at Singapore Management University 
Research Collection School Of Law School of Law 
3-2015 
Bilateral investment treaty interpretation: An internationalist spirit 
tempered by context: Government of the Laos People’s 
Democratic Republic v Sanum Investments Ltd 
Mahdev MOHAN 
Singapore Management University, mahdevm@smu.edu.sg 
Follow this and additional works at: https://ink.library.smu.edu.sg/sol_research 
 Part of the Commercial Law Commons 
Citation 
MOHAN, Mahdev. Bilateral investment treaty interpretation: An internationalist spirit tempered by context: 
Government of the Laos People’s Democratic Republic v Sanum Investments Ltd. (2015). Singapore Law 
Watch Commentary. 1-7. Research Collection School Of Law. 
Available at: https://ink.library.smu.edu.sg/sol_research/2281 
This Transcript is brought to you for free and open access by the School of Law at Institutional Knowledge at 
Singapore Management University. It has been accepted for inclusion in Research Collection School Of Law by an 
authorized administrator of Institutional Knowledge at Singapore Management University. For more information, 
please email library@smu.edu.sg. 
1 
 
 
 
       
Issue 1/Sep 2013 
 
 
 
Developments in the law on constitutional and statutory 
interpretation 
 
Vellama d/o Marie Muthu v Attorney-General [2012] SGHC 155, [2012] 2 SLR 
1033; [2013] SGCA 39 
 
Benjamin Joshua Ong∗ 
Summary and digest of holdings 
Following the expulsion of Mr Yaw Shin Leong, MP for Hougang Single Member 
Constituency (SMC), from his party, the applicant in Vellama d/o Marie Muthu v Attorney-
General [2012] SGHC 155, [2012] 2 SLR 1033 (“Vellama (HC)”); [2013] SGCA 39 (“Vellama 
(CA)”), a resident of Hougang SMC, sought a declaration that the Prime Minister did not 
have unfettered discretion in deciding whether and when to call a by-election to fill the 
vacant seat in Parliament, given that art 49(1) of the Constitution provides that “Whenever 
the seat of a Member, not being a non-constituency Member, has become vacant for any 
reason other than a dissolution of Parliament, the vacancy shall be filled by election in the 
manner provided by or under any law relating to Parliamentary elections for the time being 
in force.” This note focuses on this substantive issue rather than the procedural issues and 
issues of locus standi, which the courts also discussed at length. 
The Court of Appeal, reversing the High Court’s decision, held that, when an elected MP’s 
seat is vacated during Parliament’s term (a “casual vacancy”), the Prime Minister does not 
have unfettered discretion as to when to call a by-election, but instead must call one within a 
“reasonable time” (which is embodied in s 52 of the Interpretation Act: “Where no time is 
prescribed or allowed within which anything shall be done that thing shall be done with all 
convenient speed and as often as the prescribed occasion arises.”) However, the Prime 
Minister can take into account “all relevant circumstances”1 in deciding the time, including 
“considerations which go well beyond mere practicality”, the specifics of which it is 
“impossible to lay down”.2 Because the discretion is highly fact-sensitive, the courts will only 
intervene in exceptional cases.3 
The merits of the decision aside, several interesting points arise from the two courts’ 
different interpretive approaches.  
 
                                                          
∗ Final-year student reading for the B.A. in Jurisprudence at the University of Oxford. 
1 Vellama (CA), [92]. 
2 Vellama (CA), [92]. 
3 Vellama (CA), [85]. 
 
  Issue 1/Sep 2013 
 2 
The High Court’s approach 
The High Court concluded that the phrase “shall be filled by election” in art 49(1) meant that 
the seat was to be filled, when it was filled, by the process of election (as opposed to the 
process of appointment), and not that the event of an election had to be held. This was based 
on the structure of the Constitution, which was meant to show that the process for filling 
casual vacancies differs depending on the type of MP (elected MP, NMP, or NCMP) in 
question.4 
More significantly, the High Court held that this view was buttressed by an analysis of the 
legislative history of art 49(1), starting with its roots in a 1946 Order in Council.5 In 
particular, an Order in Council in 1955 dictated that casual vacancies “shall” be filled (a) “by 
appointment” in the case of Nominated Members, or (b) “by election” in the case of Elected 
Members.6 Provision (b), from which it was clear that “election” referred to a process rather 
than an event, was the genesis of the present art 49(1). The subsequent removal of provision 
(a) did not change the meaning of provision (b). Most significantly for present purposes, the 
then Prime Minister stated during Parliamentary debates in 1965 that the “injunction of 
holding a by-election within three months”, which had been introduced in 1963 at the 
insistence of Malaysia, “should no longer apply”; the words “within three months from the 
date on which it was established that there is a vacancy” were thus deleted.7 
The Court of Appeal’s approach 
The Court of Appeal’s response to this interpretation may be summarised into two points. 
First, the Court held, in response to submissions that the 1963 debates in Parliament on the 
Constitution had to be read in context, that “subtext, in its inherent nature, is just as capable 
of amplifying rather than clarifying any latent ambiguity” and that such latent ambiguity 
may well exist in the phrase “shall be filled by election”.8 In particular, after a further survey 
of debates in Parliament, the Court of Appeal noted that no ruling party member had ever 
denied that there was an obligation to call a by-election at some point in time, even when 
there may have been occasion to do so.9 In short, there was “no consensus” as to the meaning 
of the phrase “shall be filled by election”10 despite the Prime Minister’s declarations during 
debates in Parliament. 
Second, even if art 49(1) had only mandated that casual vacancies be filled by the process of 
election and not that the event of an election be held, it did not follow that there was nothing 
requiring the event to be held or constraining the period within which the event had to be 
held,11 even though the time-limit clause had been removed in the past.  
In addition, the Court of Appeal suggested that the question engaged the “rights of the voters 
in a Parliamentary system of government”12 which had to be “balance[d]” against the Prime 
Minister’s discretion; this is a tantalising hint that the standard of review may well be 
proportionality- rather than Wednesbury-based, although the bar may be high due to the 
issue’s polycentricity. That having been said, it is not proposed to discuss this point here. 
                                                          
4 Vellama (HC), [78]. 
5 Vellama (HC), [89]. 
6 Vellama (HC), [96]. 
7 Vellama (HC), [108]. 
8 Vellama (CA), [66]. 
9 Vellama (CA), [68]. 
10 Vellama (CA), [72]. 
11 Vellama (CA), [73]. 
12 Vellama (CA), [85]. 
 
  Issue 1/Sep 2013 
 3 
Commentary 
The approach to be taken to constitutional interpretation  
Neither court explicitly stated the law on constitutional interpretation. Strictly speaking, it 
would appear that the interpretive approach should be that in s 9A of the Interpretation 
Act,13 which art 2(9) of the Constitution provides must apply to constitutional 
interpretation,14 and which has been held to override “any common law principle of 
interpretation”.15 This approach is set out in s 9A(1): “In the interpretation of a provision of a 
written law, 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.” Moreover, 
s 9A(2) explicitly allows reference to “any material not forming part of the written law” to be 
made for this purpose, subject to the twin concerns 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” and the “need to avoid 
prolonging legal or other proceedings without compensating advantage”.16 It would appear 
that this approach was the one used by the High Court in Vellama; this would explain the 
extensive reference to legislative history. 
However, there appears to be another competing approach to interpretation in certain 
constitutional cases, which the Court of Appeal may have implicitly endorsed: in Minister of 
Home Affairs v Fisher,17 the Privy Council held that “a constitutional instrument [is to be 
treated] as sui generis, calling for principles of interpretation of its own” because “full 
recognition and effect” must be given to “fundamental rights and freedoms”.18 That both 
approaches to interpretation may subsist concurrently in Singapore law is demonstrated in 
Taw Cheng Kong, where the High Court applied s 9A to an ordinary statute19 while applying 
the Fisher approach to art 12 of the Constitution, which was held not to be “limited by the 
normal rules and maxims applied to the interpretation of ordinary legislation”.20 In Vellama, 
the Court of Appeal, by suggesting that residents have an “entitle[ment]”21 or “right”22 to 
representation in Parliament, may be seen as embracing the Fisher approach. 
On the other hand, if this rights-based analysis were the only possible one, the Court of 
Appeal would likely not have expended so much effort rebutting the High Court’s analysis 
(which was evidently based only on the s9A approach). There are at least two other ways of 
analysing the Court of Appeal’s judgment. First, the Court of Appeal recognised the principle 
that “[l]egislation rarely pursues a single purpose at all costs… For a court to construe the 
legislation as though it pursued the purpose to the fullest possible extent may be contrary to 
the manifest intention of the legislation”.23 Second, s 9A(1) refers to the “purpose or object 
underlying the written law” and not that underlying a “provision of a written law” 
(emphases added);24 the Court interpreted the scope of art 49(1) with reference to a broad 
                                                          
13 Cap. 1. 
14 “Subject to this Article, the Interpretation Act (Cap. 1) shall apply for the purpose of interpreting this 
Constitution and otherwise in relation thereto as it applies for the purpose of interpreting and otherwise in 
relation to any written law within the meaning of that Act.” 
15 PP v Low Kok Heng [2007] SGHC 123, [2007] 4 SLR(R) 183, [41]. 
16 Section 9A(4) Interpretation Act. 
17 [1980] AC 319, 329. 
18 This was not necessarily implicitly overruled by PP v Low Kok Heng (supra n 16): that case concerned quite 
another matter, viz. whether penal statutes should be construed differently from other statutes. 
19 [1998] SGHC 10, [1998] 1 SLR(R) 78, [38]ff. 
20 Ibid, [18]ff. The result was overruled by the Court of Appeal, but the approach to interpretation was not. 
21 Vellama (CA), [79]. 
22 Vellama (CA), [85]. 
23 Carr v Western Australia [2007] HCA 47, (2007) 232 CLR 138, [6]. Cf. Vellama (CA), [76]. 
24 R.C. Beckman and A. Phang, “Beyond Pepper v Hart: The Legislative Reform of Statutory Interpretation in 
Singapore” (1994) 15 Statute Law Review 69, 83. 
 
  Issue 1/Sep 2013 
 4 
purpose of establishing a Westminster-style government complete with a right to 
representation25 rather than merely the intention underlying art 49(1) as seen in isolation. 
The use of extrinsic materials in interpretation  
The Court of Appeal discussed the High Court’s use of extrinsic materials at length. Implicit 
in the Court of Appeal’s warning about the need for careful evaluation of “subtext” is a 
recognition of a certain irony in eschewing a literal approach to interpreting statutes but 
applying a literal approach in construing extrinsic materials used to interpret statutes, and 
the criticism that the High Court had taken such an approach. After all, s 9A(2) provides that 
reference to extrinsic materials is only allowed if it “is capable of assisting in the 
ascertainment of the meaning of the provision” and s 9A(4) further suggests that the court 
may have to determine the “weight to be given to any such material”.26 
On the other hand, the Court of Appeal’s judgment demonstrated the issue of cost and effort 
which is hinted at by s 9A(4)(b): in order to evaluate the applicability of the (themselves 
voluminous) Parliamentary materials which were referred to by the High Court (“first-order 
materials”) as purported statements of intention, or at least (in the case of past versions of 
constitutional provisions) indications of intention, by ministers, effort had to be spent sifting 
through other Parliamentary materials in the Court of Appeal (hereafter “second-order 
materials”) to reveal what was actually borne in mind when these statements or indications 
were made. The need for argument about the applicability of extrinsic materials is 
exacerbated by the fact that, in the particular case of the Constitution, relevant extrinsic 
materials are often ones that were not drafted with s 9A(2) in mind. It is likely that 
Parliament has felt encouraged after the passing of s 9A in 1993 to endorse clear statements 
of legislative intent intending that they the courts refer to them. Extrinsic materials before 
that may, by contrast, be mere debates of “political contention”27 rather than statements of 
purpose adopted by the Legislature. 
By contrast, the view in England is that only “clear” ministerial statements of legislative 
intent may be referred to, failing which the “expense of litigation” would be increased by 
“long arguments about [the] significance [of other extrinsic materials]”.28 Both courts’ 
judgments in Vellama demonstrate that such a concern is not unfounded, particularly when 
it comes to interpreting the Constitution, for which no single definitive statement of purpose 
may be identified (as one may be in the case of a modern ordinary statute). It is thus 
submitted that greater judicial attention to the concerns in s 9A(4), such as an explicit 
discussion of whether there is “compensating advantage” gained by recourse to extrinsic 
materials, is warranted. 
The fundamental aim of interpretation 
The Court of Appeal’s approach toward extrinsic materials reveals more fundamental points. 
The aim of statutory interpretation is generally thought to be as explained in Black-Clawson 
International v Papierwerke Waldhof-Aschaffenburg: “We often say that we are looking for 
the intention of Parliament,29 but that is not quite accurate. We are seeking the meaning of 
the words which Parliament used. We are seeking not what Parliament meant but the true 
                                                          
25 Vellama (CA), [79]. 
26 Such evaluation of extrinsic materials is not unprecedented. In Kok Chong Weng v Wiener Robert Lorenz 
[2009] SGCA 7, [2009] 2 SLR(R) 709, one ministerial statement was held to have been “not intended as an 
explanation for the ambit of [the statute in question]”. 
27 Vellama (CA), [72]. 
28 Pepper v Hart [1993] AC 593, 636. 
29 In the Singapore context, see generally PP v Low Kok Heng (supra n 16), especially [72] (“s 9A(1) of the 
Interpretation Act… specifically mandates a purposive interpretation of legislation in accordance with the object 
underlying the legislation, in other words, the intention of Parliament”). 
 
  Issue 1/Sep 2013 
 5 
meaning of what they said.”30 This was echoed in dicta cited in Tan Boon Yong v 
Comptroller of Income Tax.31 
However, the Court of Appeal’s approach in Vellama suggests strongly that this is not a 
complete statement of the law in Singapore. In seeking to determine the mindset of 
parliamentarians (e.g. whether there was “consensus” about the meaning of art 49(1)32) by, 
inter alia, drawing inferences from the Prime Minister’s responses to questions asked to him 
in Parliament,33 the Court of Appeal was seeking to discern the Legislature’s actual 
intention. This demonstrated that evaluating the applicability of extrinsic materials which 
are meant to cast light on “the true meaning of what [the Legislature] said” can itself entail 
examining exactly “what [the Legislature] meant”; perhaps this is a necessary consequence 
of the approach in s 9A in the case of words which appear to be statements of legislative 
intent but are not explicitly marked out as such. It remains an open question whether and 
when the courts will see recourse to “second-order” Parliamentary material as necessary if 
they had held that ambiguity has been sufficiently eliminated by recourse to “first-order” 
material. 
Moreover, in searching for “consensus”,34 the Court of Appeal implicitly affirmed that, 
notwithstanding the explicit permission of reference to ministerial statements by s 9A(3)(c), 
the search ought to be for the intention of the Legislature and not that of individual 
legislators (in particular, Ministers).35 In other words, the Court of Appeal’s approach is 
based on the idea that “legislative intent” is not merely a fiction or shorthand for ministerial 
intent. Quaere to what extent courts will take this into account in the case of ordinary 
statutes, and either hold phrases such as “the Minister, and in turn Parliament, had enacted 
the Act” in AAG v AAH36 to have been slips of the tongue or expose them as being shorthand 
and unpack them, especially if the rate of dissent in Parliament should increase in future due 
to changes in the political landscape. 
Conclusion 
Perhaps the fact that the Court of Appeal ruled on the substantive issue despite having held 
that the applicant had no locus standi (as a by-election was held after the High Court’s 
ruling) suggests that the primary concern of the Court of Appeal was the public interest in 
the merits of the specific case. Nonetheless, it is hoped that the Court of Appeal’s judgment 
will also pave the way for further exploration of the law on constitutional and statutory 
interpretation in Singapore, which is perhaps set to become more significant as Singapore 
has experienced a recent increase in the number of constitutional cases. 
 
About SLW Commentaries 
SLW Commentaries are short reviews or commentaries of the latest Singapore Supreme Court judgments, taking 
an analytical and “big picture” approach on legal developments. Although consisting primarily of commentaries 
on Supreme Court judgments, SLW Commentaries also include well-written articles on recent legislative changes. 
Interested contributors may write to SLW for more information. 
                                                          
30 [1975] AC 591, 613. 
31 [1993] 1 SLR(R) 208, citing at [15] Beswick v Beswick [1968] AC 58, 73–74 (“… we must deduce [Parliament’s] 
intention from the words of the Act…”) and at [18] Pepper v Hart [1993] AC 593, 634. The court disapproved of 
the rule in Beswick which prohibited reference to Hansard, but not the general idea that the aim is to give effect 
to legislative intention as it appears from the statute. 
32 Vellama (CA), [72]. 
33 Vellama (CA), [68]–[70]. 
34 Vellama (CA) at [72]. 
35 See generally A. Kavanagh, “Pepper v Hart and matters of constitutional principle” (2005) 120 LQR 98. 
36 [2009] SGCA 56, [13]. 


English

https://ink.library.smu.edu.sg/cgi/viewcontent.cgi?article=4233&amp;context=sol_research

Bilateral investment treaty interpretation: An internationalist spirit tempered by context: Government of the Laos People’s Democratic Republic v Sanum Investments Ltd

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Institutional Knowledge at Singapore Management University

Institutional Knowledge at Singapore Management University