Judgment reserved on Hougang by-election case

Resident's application fatally flawed, says AGC

By Andrea Ong, The Straits Times, 31 Mar 2012

A HOUGANG resident's bid to get the courts to order the Prime Minister to hold a by-election in her ward within three months is 'fatally flawed', the Government's lawyers argued yesterday.

The application is 'wholly misconceived', 'legally unsustainable and unarguable in law and fact', the Attorney-General's Chambers (AGC) said yesterday as it sought to strike out the application by part-time cleaner Vellama Marie Muthu.

In a hearing, it argued that the Constitution gives the Prime Minister the discretion on when to hold a by-election, and does not need to call one within a fixed time. Issuing him a mandatory order to do so, it indicated, would ultimately amount to the judiciary interfering with the executive arm of government.

'In one fell swoop, the plaintiff would have the court usurp the power of the Prime Minister to decide when to call a by-election and usurp the power of Parliament to amend the Constitution,' it said in its submission.

Judgment, however, was reserved after the closed-door hearing, which is likely to continue to focus interest on the closely watched case that followed last year's watershed general election.

The court now has to decide on whether to grant leave for Madam Vellama's application for the mandatory order, before it can be heard in open court. No date was given for the next hearing.

Yesterday saw Justice Philip Pillai hearing arguments from Madam Vellama's lawyer M. Ravi and the AGC, represented by Chief Counsel David Chong and Senior State Counsel Hema Subramanian.

The hearing was held to determine whether there were grounds for the application to proceed.

Madam Vellama, 42, made the application after former MP Yaw Shin Leong was expelled by the Workers' Party on Feb 14, leaving the single-member constituency seat vacant.

Since then, WP leaders have been pushing PM Lee to call a by-election soon. Mr Lee made clear in Parliament earlier this month that he would do so, but would consider relevant factors in deciding when this would take place.

On March 2, Madam Vellama filed an application, which asked the court to declare that the PM did not have 'unfettered discretion' in deciding whether and when to call a by-election. It also asked for the court to issue a mandatory order for him to do so within three months or a 'reasonable time'.

In her affidavit, she indicated she wanted to have an elected representative of her choice in Parliament so she could get help on issues such as financial struggles.

But yesterday, the AGC called the application 'unarguable in law and fact', and said it was based on an incorrect reading of Singapore's laws.

It argued that the application for the declaration was a moot point, and referred to PM Lee's announcement in Parliament on March 9. Mr Lee had said: 'I intend to call a by-election in Hougang to fill this vacancy. However, I have not yet decided on the timing of the by-election.'

The AGC observed: 'There is also no live dispute or controversy inasmuch as the Prime Minister has stated unequivocally... that he is presently engaged in deciding when to call the by-election in Hougang.'

The AGC also took issue with the request for a mandatory order, calling it 'misconceived'. The Constitution, it noted, stated that a vacant seat 'shall be filled by election', but does not provide for the timing of the by-election, which is up to the PM to decide.

Mr Ravi had based his argument on Section 52 of the Interpretation Act, which states that if no time limit is prescribed for an act, it should be done 'with all convenient speed'. Having no clear timeframe, he said, could result in a by-election being deferred until the next general election, and cited past cases where by-elections were not called in vacated single-seat wards.

But the AGC countered that Section 9A of the same law also made clear that laws should be interpreted after taking into account their context and purpose.

The Constitution was amended in 1965, it stressed, to remove a clause that set a three-month deadline for by-elections to be called. This was deliberately done so that the timeframe would be up to the PM to decide, it noted.

'By asking the court to rule that the Prime Minister is to call a by-election in Hougang within three months or within a reasonable time as directed by the court, the plaintiff is asking the court to decide the very matter which the Constitution expressly provides is the function of the Prime Minister to decide,' it submitted.

The AGC also rebutted Mr Ravi's point that there was a 'delay' in the PM's decision on a by-election, noting: 'No reasonable person would say that there has been delay... barely a month has elapsed since the Speaker of Parliament announced the vacation of the Hougang parliamentary seat.' Rather, it added, PM Lee had in his March 9 announcement shown that he was 'acting with all convenient speed'.

The AGC also argued that the request for the courts to issue the Prime Minister with a mandatory order was inconsistent with the principle of the separation of the judiciary and the executive arm of government.

'The question as to when a by-election is to be called is heavily policy laden and involves significant elements of macro-economic policy and political judgment - these are matters which a court of law is ill-equipped to deal with,' it said.

Madam Vellama, who was accompanied by her 18-year-old son yesterday, told reporters she felt good that her application was being argued in court. She said she intends to write to PM Lee to ask when he will call the by-election.