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AG’s arguments dismissed, court to hear Hougang by-election case

The High Court on Tuesday dismissed the attorney-general’s arguments to have the application by Vellama Marie Muthu thrown out.

Vellama’s application sought the court to determine the Prime Minister’s discretionary powers in calling by-elections in Singapore.

In doing so, the courts have granted Vellama’s application for leave to have her case heard. In essence, Judge Philip Pillai’s decision means Vellama, through her lawyer M Ravi, has satisfied the Court that there is an arguable case against the State and that the courts recognise the need for clarification on the constitutional questions raised by Vellama in her application.

Last Friday, lawyers representing the two sides were in Pillai’s chambers for three hours presenting their arguments.

The attorney general was represented by chief counsel David Chong and senior state counsel Hema Subramanian.

On Tuesday, Judge Pillai decided that there is a prima facie case to be heard in open court and ordered two days to be set aside for it. The hearing will take place at 10am on 16 April, with 17 April reserved for the proceedings if required.

The proceedings will be open to the public.






At the heart of the case are the 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.

Chong had argued last Friday 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.

In his judgement, which was given orally, Pillai directed the attorney general to file Hansard or official parliamentary records, of the reasons given by the government in not holding by-elections in Havelock (1983), Anson (1986) and Geylang West (1986).

M Ravi had cited these three examples to argue that the Prime Minister’s discretionary powers are not to be unfettered, otherwise the constitutional requirement for vacant seats to be filled through by-elections would be meaningless.

All of the three seats in the 1980s were subsequently erased from the electoral map in the subsequent general elections which followed. No by-elections were held in those wards when they became vacant.

Pillai also directed M Ravi to address, on 16 April, the specific statements, as reported by the media, by Prime Minister Lee on the Hougang by-election, namely on “whether” and “when” he “intend[s]” to call a by-election in the constituency.

M Ravi asked the court to allow him to admit constitutional law experts at the hearing on 16 April. The judge denied his request but said that he may submit their legal opinions to the court instead.

“Given the strenuous arguments by the attorney general, and the intensity with which the state opposed this,” M Ravi said, “and given the fact that the judge has granted leave, it shows that he is hearing the matter in a fair and expeditious manner.”

“This marks an important chapter in Singapore’s constitutional history,” M Ravi added, “in being able to advance the rights of citizens, in respect of electoral rights, and in limiting the powers of the Prime Minister and the Executive. So, there is an expressed recognition by the courts, at this stage, of the two issues being significant, to be advanced.”

Andrew helms publichouse.sg as Editor-in-Chief. His writings have been reproduced in other publications, including the Australian Housing Journal in 2010. He was nominated by Yahoo! Singapore as one of Singapore's most influential media persons in 2011.