Wong Souk Yee v AG
(a)
[2019] SGCA 25
first, it must be possible to determine from a consideration of the
provisions of the Act concerned, read as a whole, what the mischief was
that Parliament sought to remedy with that Act;
(b)
second, it must be apparent that the draftsman and Parliament
had inadvertently overlooked, and so omitted to deal with, the
eventuality that was required to be dealt with so that the purpose of the
Act could be achieved; and
(c)
third, it must be possible to state with sufficient certainty what
the additional words would be that the draftsman would have inserted
but for the inadvertence, and that Parliament would have approved those
words had its attention been drawn to the omission.
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In our judgment, the third requirement of sufficient certainty poses an
insurmountable barrier to the adoption of a rectifying construction in the present
case. As we highlighted earlier (at [54]–[56] above), while the result which
Parliament intended to achieve is clear (namely, that a vacancy in the seat of a
GRC Member would not give rise to an obligation on the part of the Government
to call a by-election), it is far from clear how Parliament thought it would effect
this result. In the circumstances, it is impossible to state with certainty the words
which the draftsman would have inserted and whether Parliament would have
approved of the insertion because it is unclear whether Parliament wanted to
amend the language of the Constitution at all. To add to this, the entrenched and
fundamental nature of the Constitution compounds our hesitancy to act in the
face of this uncertainty.
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