Hougang by-election case meets threshold to be heard: Judge

[UPDATE: 10 April at 8pm - adding Judge Pillai's explanation for granting leave]

The Hougang by-election case satisfies the threshold required for it to be heard in the High Court, said judge Philip Pillai on Tuesday.

Judge Pillai, who heard arguments for and against the passage of Hougang resident Vellama Marie Muthu's application for a judicial review hearing late last month, said he determined that Vellama's case was an "arguable" one.

An arguable case refers to one that presents a potential legal argument, as opposed to a groundless or frivolous claim that does not merit it being heard in court. In instances such as this one, where the applicant calls for the High Court to make a declaration or a mandatory order on an existing law, permission, referred to as "leave", needs to be given by a judge before it can be heard.

In his written explanation, Judge Pillai said there are three requirements for such a case to be deemed "arguable": first, that the matter is susceptible to judicial review; second, that the applicant has sufficient interest in the matter; third, that the material presented before the court shows, at first glance, a case that lends favour to it being heard.

"I was of the view that (this) very low threshold for leave has been met," he wrote in the conclusion of the grounds he provided.

When contacted, constitutional law professor Thio Li-ann noted that although Judge Pillai has found the case to be arguable, the strength of Vellama's case has yet to be determined.

"He was not expressing an opinion on the strength of the legal argument, but was basically saying that at first look, there is an argument in there which is worth hearing," she told Yahoo! Singapore. "All he has to do at the leave stage is to find an arguable case," she added.

Judge Pillai's explanation of his decision now clears the way for the Court of Appeal to hear the Attorney-General’s Chambers (AGC) appeal filed last Thursday against it.

Last Tuesday, he granted leave for the application of Hougang resident Vellama Marie Muthu, who asked the High Court to determine the Prime Minister’s discretionary powers in calling for a by-election in her single-member constituency.

The hearing for her application was set for 16 April, but this may be delayed as the High Court cannot proceed unless the Court of Appeal has heard the AGC’s appeal, reported Channel NewsAsia.

Adjunct professor Kevin Tan, who teaches constitutional law at the National University of Singapore, told Yahoo! Singapore, "If the AGC did not appeal on 4 April, it (the Hougang by-election case) would have been heard by the High Court (on the merits), but since there is an appeal, it will go to the Court of Appeal on the same question: Whether the claim should be struck out for being frivolous."

He also explained that two things could now happen. The Court of Appeal could affirm Pillai's decision, which would allow the case to be heard by a High Court judge. If the appeals court reverses the decision, however, the matter will be at an end and Vellama would not have her day in court.

At the heart of the Hougang by-election case lie questions of whether the Prime Minister has the option to call a by-election, and when he should call one in situations where a parliamentary seat is made vacant for various reasons.

During the initial hearing, AGC chief counsel David Chong had argued that since Prime Minister Lee Hsien Loong had already said, on 9 March, that he “intend[s]” to call a by-election in the vacated seat of Hougang, there “is no executive decision that could legitimately be the subject of a judicial review.”

Chong also argued that “a court’s power to intervene in an act of the Executive is premised… on there being a controversy requiring such intervention.” He said that “[there] is no such controversy in the present case.”

M Ravi submitted that the Prime Minister’s words – that he will decide “whether and when” to call a by-election in Hougang – had thrown up questions about his discretionary powers under the law.

M Ravi also took issue with the Prime Minister’s other statement – that he “intends” to call a by-election in Hougang. This showed that the Prime Minister thought he had the option in calling a by-election, M Ravi said.

The PM could, he argued, cancel plans for a by-election in Hougang if the PM chose to. An intention is not the same as a mandatory act required under the law, he explained, which the calling of a by-election is.

Additional reporting by Jeanette Tan; with background from Andrew Loh