Why Hougang by-election application is important

Ms Vellama Marie Muthu’s appeal to the High Court to allow a hearing of her application on the issue of the by-election in Hougang is an important one. They not only involve the powers of the Prime Minister in such matters but they also have implications on the rights of Singaporean voters.

Prime Minister discretion – open to abuse?

Presently, the discretion to call by-elections and general elections are with the Prime Minister. The same practice is also adopted in several other countries, such as Malaysia and Britain. The question raised in Ms Vellama’s application, however, asks whether such discretion is absolute. In other words, does the Prime Minister have “unfettered” powers to decide when to call a by-election, in particular.

It is an important question because of the other powers which the Prime Minister possesses. For example, he has power to convene the Electoral Boundaries Review Committee (EBRC), which falls under his Office, and his government also decides whether to accept the committee’s recommendations to the boundary changes.

In three past occasions, such powers were used to erase the three existing constituencies in the general elections which followed.

If the Prime Minister’s powers are unfettered, the same could happen to Hougang.

The Prime Minister could, for example, delay holding a by-election in Hougang, for as long as he deems fit – even unto such time when he calls a general election by which time there would be no need for a by-election, as has happened in the three past examples.

In short, the Prime Minister can hold off calling a by-election in Hougang until he calls the next General Election, due by 2016.

However, since he also has powers to call a General Election, he can indeed call one anytime – and erase Hougang off the electoral map, as have happened in the three past examples of Havelock (1983), Anson (1986) and Geylang West (1086). He would have also avoided having to call a by-election in Hougang.

It is because of this potentiality – which already has precedents in the 1980s – which Singaporeans should be concerned about, and which Ms Vellama’s application seek to clarify.

Should the Prime Minister have the power to avoid calling a by-election, and instead call a General Election, and then wipe a constituency off the electoral map?

Thus, the question of whether the Prime Minister’s discretionary powers are unfettered is a completely relevant one.

This is more so because the Constitution spells out that in the event of vacancy in a constituency, “[the] vacancy shall be filled”. In other words, a by-election must (“shall”) be held to elect a Member of Parliament for the vacant constituency.

The Prime Minister’s discretion, it would seem, is therefore not unfettered – it is subject to the Constitutional provisions – and the Prime Minister cannot delay the calling of a by-election until the next General Election. To be able to do so would make the provision in the Constitution redundant.

In other words, the Prime Minister can effectively avoid calling a by-election, in spite of the constitutional provision, if his discretionary powers are unfettered. It makes no sense.

Reasons given for not calling by-elections

The parliamentary exchanges on the three occasions in the 1980s when parliamentary seats were made vacant – through deaths and disqualifications – are instructive and telling.

According to Parliament reports, then-Prime Minister Lee Kuan Yew, in reply to a question by MP for Anson, Mr JB Jeyaretnam, on why the government has not called a by-election in the vacant seat of Havelock, said:

There is no reason why the people of Havelock should have a bye-election [sic]. There is no reason why anybody should be looking after Havelock under the Constitution. There is no reason at all. For purely grassroots purposes and to ensure that the vote will be forthcoming in the General Elections, I have thought fit, both in my capacity as Secretary-General of the PAP and in my capacity as Prime Minister, to ask Mr Lee Yiok Seng, the Member for Bukit Panjang, to nurse the constituency. And it is completely open to the Member for Anson to set up his branch there and to meet us there in the General Elections. I expect him to do so; or he is wasting the time of this House and the time of the public.” [Emphasis added.]

Mr Lee explained that “the General Elections must be held in another two years. They are likely to be held earlier. Before then, Havelock, an inner urban constituency, because of declining population, is likely to be merged with other constituencies.” Mr Lee said it therefore “makes little sense to hold a bye-election.”

In 1986, Mr Chiam See Tong (MP for Potong Pasir), asked why the Government had not called a by-election in Anson, which was vacated after its MP, Mr JB Jeyaretnam, was disqualified from holding the seat. Mr S Dhanabalan, then-Foreign Affairs Minister, replied that there were no requirements under the law to call one. He added: “The people of Anson elected Mr Jeyaretnam. He has been convicted of a criminal offence and fined and sent to jail. They have to learn to live with the consequences of their choice.” (See here.)

In 1987, Mr Chiam asked about the vacant seat in Geylang West, which had become empty after its MP, Mr Teh Cheang Wan, died in 1986. Then-First Deputy Prime Minister, Mr Goh Chok Tong, replied that the reason for the Government not calling a by-election in the ward was because the Government was “contemplating introducing a Bill to form Town Councils.”

Mr Goh explained:

“When Town Councils are formed after the Bill has been passed in Parliament, we envisage that certain constituencies will be grouped together so that the Members of Parliament can have a viable Town Council of three or four MPs banding together. It is possible that some boundaries will be re-delineated and it is also possible that some constituencies could be lost because, as you know, voters or the population have been shifting from the older constituencies into new towns. It is possible that Anson or Geylang West could be affected, either by a change in their boundary, delineation, or perhaps by the constituency being divided into parts which can be absorbed by the neighbouring constituencies. We do not know. It is very painful for any MP, whether he is a PAP MP or an Opposition MP, to have cultivated the grassroots only to lose them in the next election. It is for this reason that we thought it wise not to have a by-election until the Bill is presented to Parliament.”

In summary, the reasons given by the Government for not calling by-elections in each of the 3 instances were:

  1. There is no legal requirement to call one.
  2. Voters “have to learn to live with the consequences of their choice” if their constituency were left vacant by their MPs.
  3. Because new Bills were going to be introduced which would affect the electoral system (for example, the introduction of the GRC in 1988).

Are all these valid reasons for ignoring the Constitutional provisions which says: “The vacancy shall be filled”?

Is the Government allowed to change the electoral system, and use this to explain away the need for by-elections?

It thus boils down to two questions:

  1. Does the Prime Minister have discretion not to call a by-election, which PM Lee seems to have implied in his first comments about the Hougang by-election on 1 March?
  2. Does the Prime Minister have unfettered discretion to decide when he will call a by-election?

PM Lee, in remarks in Parliament on 9 March, said the matter is sub judice and is before the courts and that “Singaporeans do not talk about matters which are sub judice.”

He has, effectively, deferred the matter to the courts. And the courts must therefore adjudicate.

The court’s decision will decide how by-elections in future should be held – or not.

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12 thoughts on “Why Hougang by-election application is important

  1. “This is more so because the Constitution spells out that in the event of vacancy in a constituency, “[the] vacancy shall be filled”. In other words, a by-election must (“shall”) be held to elect a Member of Parliament for the vacant constituency.” – Andrew Loh

    Let me correct what AL has convenient misquoted from OUR Constitution.

    Section 49 of the constitution states that any vacated parliamentary member’s seat “shall be filled by election”.

    It does not state what kind of election – GE or BE.

    AL seems to have given the Constitution his own narrower interpretation , to his convenience.

  2. Bryan Ti,
    You also seem to have conveniently forgotten that the constitution provides for such an election to be conducted in the shortest possible time. Would the constitution need to particularly specify this if this alludes more to a GE than a by-election?

    Can it possibly be misunderstood that the spirit behind this constitution requirement refers to a ‘by-election’ rather than a ‘general election’ in a case in point like the present one when the present govt is only months into its present term? You are really INSULTING the intelligence of the drafters, our forefathers, who drafted the constitution. It also once again clearly demonstrate the desperation of quarters in the ruling party that you no doubt pretend to speak on behalf.

  3. What a shame that the then PM as a representative of the people can utter such rubbish! A disgrace!

  4. Thanks, Bryan, for the clarification. I’d like to provide the following from this blog:

    http://singaporepubliclaw.com/2012/02/28/a-legal-backgrounder-on-by-elections/

    “Article 49(1) states that if a seat of an elected MP becomes vacant for a 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”.

    It might be argued that the provision makes it mandatory for a by-election to be called at some stage, even though the Parliamentary Elections Act (Chapter 218, 2011 Revised Edition) is silent on the timeframe for doing so. If this is an accurate reading of the provision, the Government cannot wait until Parliament is dissolved for the next general election.”

    The phrase – “shall be filled by election” – can only mean a by-election. For if it means General Election, then it would be saying and indeed proscribing the Govt from erasing the vacant constituency from the electoral map. The constituency would – must – be retained during the General Election so that this law is fulfilled. I don’t think, therefore, that the phrase is referring to a General Election.

    It would make no sense – and the Govt would be guilty of infringing the law in those past 3 instances.

    1. ur conclusion: “The phrase – “shall be filled by election” – can only mean a by-election.” ..has far-reaching consequences, which r strange.

      for one, u essentially argue that PM cannot call GE if there’s a vacant seat, or otherwise – to fulfil the law:
      1. constituency must be retained (u agree that this is not proper interpretation of the phrase), or
      2. PM must first called for By-election

      if we put the timing on the above scenarios, there will be further questions, say:
      – can the parliament be dissolved when there’s a vacant seat?
      – can the time frame when GE must be held be extended to allow for By-election (i.e. to fulfil the above)?
      etc.

      Singapore law provides to look into parliamentary proceedings when interpretation of certain law is disputed. I think, this alone would affirms government understanding, as what has been communicated by PM.

  5. It only goes to show that our previous PM had the complete disregard for our Singapore Constitution by the reasons he gave and the subsequent manner he conducted the govt in avoiding those 3 bye-elections.

    When they don’t even want to respect the rights of the voters of these constituencies, so all the hue & cry about the need for GRCs to represent the rights of the minorities not being represented in parliament was a lie afterall.

    Now we have the opportunity to witness for ourselves whether his son’s apology before the last GE was really that sincere afterall. Or it was simply another lie ?

  6. Jammie,

    This is why it is good if the court will allow the hearing and settle the issue once and for all. You have effectively agreed with me that there are issues to be settled by the court.

    1. well, not quite, andrew.

      Ms Muthu’s case is the perfect example of what US politicians mean when they say: we do not want a judge who legislates from the bench.

      the judge is not legislator, he/she cannot interpret the law more than what it is intended to. my reference to parliamentary proceeding is only to show that the final arbitration is the lawmakers’ intention for the law as when it’s prescribed. in this case, it has been explained many times before in parliament.

      hence, the right thing for the judge is to dismiss this case as it has no merit. (due process for dismissal must be given, of course)

      even approving it to be heard in open session would mean setting precedence to “define” the law in court, rather than parliament. (i.e. next time, if an MP is not satisfied with a certain bill, he might as well fight it in court.)

      1. May I ask if the judge cannot interpret the law, who can interpret the law then ?

        What nonsense of the interpretation of the law we talk about when you even have prime minister who can blatantly and publicly says “fixing opposition party and buying supporter’s vote” and no law and enforcement can use to bring him to justice ?

  7. Andrew,
    This BY-ELECTION shows to Singaporeans how powerful our public servants are now in ursuping the rights of the people by passing laws in parliament to give themselves the discretion to abuse
    the power of the people of Singapore. They have forgotten who they are now. They think they
    are master of Singapore and the Singaporeans are their servants. As a result, day in and day
    out, they are highjacking the people rights in parliament by passing this and that law unconstitutionally. They even forgot this: THAT THE PEOPLE POWER ARE ALWAYS MORE
    SUPERIOR TO THE EXECUTIVE AND THE LEGISLATIVE POWERS.

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