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:
- There is no legal requirement to call one.
- Voters “have to learn to live with the consequences of their choice” if their constituency were left vacant by their MPs.
- 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:
- 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?
- 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.