Does the Prime Minister have the option whether to call a by-election, and does he also have the discretion to decide when to call one? These two questions were put before Justice Philip Pillai at the High Court on Friday, 30 March.
The hearing, which lasted three hours, was held in chambers.
Vellama Marie Muthu, a resident of Hougang Single-Member Constituency (SMC), had filed an application with the courts on 2 March seeking a hearing to be heard in the courts.
She is also asking the court to declare “that the Prime Minister does not have unfettered discretion” in deciding the two matters, and for the court to declare that the Prime Minister must announce a by-election in Hougang “within three months or within such reasonable time” as the court deems fit.
The Hougang parliamentary seat was vacated by then-Workers’ Party Member of Parliament, Yaw Shin Leong, on 14 February, after he was dismissed by the party.
On Friday, senior counsel David Chong, acting for the attorney-general, asked the court to dismiss the application.
He argued that the Prime Minister had already announced in Parliament on 9 March that he “intend[s] to call a by-election in Hougang”, and that the court has no jurisdiction in compelling the Prime Minister to call one within any specific time frames.
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.”
He added that as “the Prime Minister has not refused to exercise his discretion, there is no executive decision that could legitimately be the subject of a judicial review.”
M Ravi, acting for Vellama, submitted to the courts that under the law, by-elections are mandatory, and not optional, as the Prime Minister had implied in his earlier remarks. In a Straits Times report in March, Prime Minister Lee Hsien Loong was reported to have said that he would consider carefully “whether and when to hold a by-election in Hougang.”
“This application was triggered by a genuine concern that the Prime Minister took the view that he was entitled to decide whether to hold a by-election,” M Ravi said, referring to PM Lee’s remarks. He added that under the law, the Prime Minister “does not have a discretion as to whether to hold by-elections.”
Although PM Lee had later clarified in Parliament that he “intend[s] to call a by-election in Hougang”, M Ravi said this is not the same as saying, “I am under a legal obligation to call a by-election.” The PM could, M Ravi said, cancel plans for a by-election in Hougang if the PM chose to.
“When the PM makes statements to the press suggesting that he decides whether to hold the election,” M Ravi told the court, “it causes great alarm among the populace, for that is not, it is respectfully submitted, what the law requires.” He explained that Article 49(1) of the Constitution says: “The vacancy shall be filled” – and that, within a reasonable time.
He thus submitted that the courts have jurisdiction to compel the PM to state that he must hold a by-election – that this is not optional – and that he must do so within a reasonable time.
Citing a pronouncement by the House of Lords in an earlier case in the United Kingdom, M Ravi said the UK court made it clear that a hearing before the court is permissible if it were shown, among other things, that “the Minister … misinterpreted the law and proceeded on an erroneous view of the law.”
“The Prime Minister, by holding out to Singaporeans that he had the power to decide ‘whether and when’ to call an election has clearly proceeded on an erroneous view of the law,” M Ravi said.
He told the court that the Prime Minister “could not frustrate the intent of the law by using his discretion… to effectively defer a by-election until the next General Election.”
M Ravi cited three previous cases in Singapore, where parliamentary seats were vacated by the respective MPs due to death or disqualification, but where no by-elections were held, to push his point that the PM’s discretion is not to be unfettered, otherwise the law would be meaningless.
In December 1983, the MP for Havelock constituency, Hon Sui Sen, passed away in office. His seat was thus vacated. No by-elections were held in the ward until the General Election in 1984, when the Havelock seat was erased from the electoral map.
In November 1986, the late JB Jeyaretnam’s seat in Anson was vacated after he was disqualified from holding a seat in Parliament. No by-elections were held and the seat remained vacant until the 1988 General Election, when the Anson seat was erased from the electoral map.
Again in 1986 (December), the Geylang West seat became vacant after its MP Teh Cheang Wan committed suicide. No by-elections were held until the 1988 General Election when the Geylang West seat was erased from the electoral map.
“These were egregious breaches of the Constitution,” M Ravi told the court. “This is because Article 49(1) says that ‘the vacancy shall be filled’… this must mean within a reasonable time in order to avoid a similar transgression taking place in a [democratic] country.”
The argument then turned to the issue of when the Prime Minister should or must call a by-election.
Chong submitted that Article 33 of the Constitution of Singapore was amended in 1965, after Singapore had become independent from Malaysia, to revoke the requirement for the Prime Minister to hold a by-election within three months of vacancy..
“The amendment to the Constitution… reflects a deliberate decision by Parliament that the holding of a by-election is not to be circumscribed by any specific time-frame and is instead to be wholly left to the discretion of the Prime Minister when to hold a by-election,” Chong said.
Chong cited section 52 of the Interpretation Act (IA) which says: “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.” [Emphasis added.]
M Ravi told the court that the point that the Prime Minister has the discretion to decide on when to call a by-election is not being disputed. What he is asserting is that such discretion is not absolute – that it is subject to reasonable time limits.
“’Speed’ would necessarily imply ‘haste’ or ‘expediency’,” M Ravi said, referring to s52 of the IA. “The term “convenient speed” would mean “as soon as possible” and not “as late as possible”, he said.
“It has been more than a month and a half since the vacating of the Hougang seat,” M Ravi said, “and three eeks since the PM announced in Parliament that he will ‘consider the factors’ to call a by-election. This can hardly be expedient.”
M Ravi said the issue of whether the PM has the option whether or not to call a by-election “did not become moot merely because the Prime Minister stated in Parliament on the 9th of March that he ‘intended’ to call a by-election’.”
“On the same day, he said ‘the legal question whether he must call a by-election’ was sub judice,” M Ravi told the judge. “He acknowledges that it is a live issue. And he deferred to this court the responsibility to answer that question.”
M Ravi said the plaintiff (Ms Vellama) “would be content if the Attorney General in this court gives a categorical recognition that a by-election must be called, and that the Prime Minister cannot determine whether it shall be called.”
When asked if Chong had given such a recognition or statement on behalf of the AG, M Ravi said no.
Justice Pillai has reserved judgment.
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.
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