Sunday 7 July 2013

PM must call polls to fill a vacant MP seat

Court of Appeal overturns decision of High Court on by-elections
By Andrea Ong, The Straits Times, 6 Jul 2013

THE Court of Appeal has ruled that the Prime Minister must call an election to fill a seat vacated by an elected Member of Parliament, overturning a High Court decision that the PM has the discretion to decide whether or not to call an election.

Singapore's apex court made the ruling even as it dismissed an appeal by Hougang resident Vellama Marie Muthu against Justice Philip Pillai's decision on her bid to get the court to declare that the PM does not have unfettered discretion to decide whether and when to call by-elections.

Yesterday, the court said she did not have standing to pursue the declaration after the Hougang by-election was held on May 26 last year. However, explaining its decision to delve further into the legal questions raised by her bid, the court added: "As we are of the opinion that the Judge's views on the procedural and substantive issues need clarification, we feel constrained to examine them."

Its 57-page judgment brings to a close a long-running case which has sparked debate since the 43-year-old cleaner made her bid in March last year, after her MP Yaw Shin Leong vacated his seat.

Last August, Justice Pillai ruled: "There is no requirement in the Constitution to call elections to fill elected Member vacancies. There being no such requirement, there arises no prescribed time within which such elections must be called."

He noted the case turned on the meaning of one word - "election" - in Article 49 of the Constitution, which says a vacancy "shall be filled by election".

Madam Vellama's lawyer M. Ravi argued that the word referred to an event that had to be held, while the Attorney-General's Chambers (AGC) said it described the process of how a vacancy is to be filled. The judge agreed with the latter reading.

Madam Vellama appealed.

The Court of Appeal reserved judgment this January and directed both sides to do more research on Singapore's legislative history in 1963, when Singapore merged with Malaysia.

Yesterday, the court, comprising Judges of Appeal Chao Hick Tin, Andrew Phang and V.K. Rajah, said the key lay in the word "shall" rather than "election".

"Shall" indicates the act is mandatory, it said, raising a point Mr Ravi had argued previously.

Summarising the legislative history of Article 49, the court noted there has been no consensus on the meaning of the phrase "shall be filled by election".

A clause saying a vacated seat shall be filled by election within three months was introduced in 1963 but deleted in 1965.

But the court said: "The absence of the time-limit clause cannot lead to the conclusion that the Prime Minister is completely free to do as he pleases, even to the extent of delaying indefinitely the calling of a by-election or even declaring that he will not fill the casual vacancy."

On the other hand, the court agreed with the AGC that there is "no pre-determined timeframe" for the PM to call a by-election.

Holding a by-election involves considerations beyond "mere practicality". The PM could take into account factors such as the well-being of the country, it said.

Speaking in Parliament in March last year, Prime Minister Lee Hsien Loong reiterated the Government's view that the timing of a by-election is at the PM's discretion.

Yesterday, the Court of Appeal said there needs to be a balance between voters' rights and the PM's discretion, as a vacancy left unfilled for "an unnecessarily prolonged period" raises the risk of disenfranchising constituents.

"He (the PM) must do so within a reasonable time and in that regard, the Prime Minister is entitled to take into account all relevant circumstances and only in clear cases can there be judicial intervention," said the court.

Its ruling, however, applies only to single-member constituencies as there is a provision requiring all MPs of a group representation constituency to vacate their seats before an election can be held, it said.

The court ordered each party to bear its own costs.

In a statement last night, the AGC noted that while the PM must call a by-election within a reasonable time, his discretion "would only be disturbed in exceptional cases" and he is entitled to take into account all relevant circumstances. Also, the Court of Appeal, in dismissing Madam Vellama's appeal, had agreed with the AGC that her bid was premature, coming barely two weeks after Hougang was vacated, it said.

The AGC also noted the court had ruled she should not have been given leave to go ahead after PM Lee called the by-election.

The AGC is studying the judgment carefully and will advise the PM on it, its spokesman said.

Hailing the judgment, Mr Ravi said: "A year ago, who would have imagined one Hougang citizen could take on such a challenge... and it would result in the highest court affirming that Singaporeans do have a right to representation in Parliament."

By-election ruling still gives PM discretion

Last week, the Court of Appeal ruled that the Prime Minister must call an election to fill a vacated parliamentary seat within a reasonable time. The ruling overturned an earlier one by the High Court, which said that the Prime Minister had full discretion over whether to hold an election. The case began in March last year when Hougang resident Vellama Marie Muthu made a bid to get the court to declare that the Prime Minister does not have unfettered discretion to decide whether and when to call by-elections. She did so after the Hougang seat fell empty when the Workers' Party sacked then MP Yaw Shin Leong. Elgin Toh speaks to lawyer and MP for Bishan-Toa Payoh GRC Hri Kumar Nair and law professor and Nominated MP Eugene Tan on the ruling. They debated publicly on whether and when by-elections had to be called after the seat was vacated last year. Don't confuse PM's legal duties with what people think he should do: MP
The Straits Times, 13 Jul 2013

What is your reaction to the ruling? Were you surprised by it?

The Court of Appeal took a view on Article 49 of the Constitution (regarding a vacated seat), and the scope of the Prime Minister's duties thereunder. There is no issue of surprise.

What is the significance of the ruling? Has anything really changed for the Prime Minister?

The ruling does not contradict Prime Minister Lee Hsien Loong's statement in Parliament in March last year, shortly after the Hougang seat was vacated.

The PM stated that he had discretion on when to call a by-election, and when exercising that discretion, he would consider all the circumstances of the matter, including the interests of the voters of Hougang. That is how the Court has framed his duty.

There was previously confusion in the media because some commentators suggested that calling a by-election was "automatic" or should be "immediate", and that the PM must publicly explain if he delays calling one. That is not the law.

So even after this ruling, you believe the PM does not have to give a public explanation for delaying a by-election?

We must not confuse the PM's legal duties with what some people think he should do politically. The PM is not legally required to publicly explain his decision process or what matters he is taking into account.

When Parliament was debating in 2008 a motion to set a time limit for holding by-elections, Mr Lee said "the Prime Minister of the day has a discretion to decide when he wants to call or whether he wants to call (a by-election)". Does the ruling overturn this position?

Not necessarily. For example, one of the things the Court said is that the PM may decide not to call a by-election if the next general election (GE) is to be called soon - the Court suggested a 12- to 18-month timeframe. In such a case, the Court appeared to take the position that the PM has the discretion not only over when to call, but whether to call.

But what if the seat were vacated shortly after a GE, years before the next GE is due?

The ruling still gives a PM very wide discretion, because it says the reasons that a PM can take into account are varied. He can consider all relevant circumstances, including domestic and international issues.

Also, let's not forget that a PM has the right to call an early GE, and that possibility could be the reason for him not calling a by-election. So it will be very difficult for anyone to say: "The PM hasn't called a by-election, so he must not be obeying the law."

The ruling says the Court can intervene in the PM's discretion in "exceptional cases". What might an exceptional case be?

This would be extremely rare, because the discretion is so wide. The Court would have to put itself in the shoes of the PM of the day, consider the whole spectrum of issues and then confidently say: "No reasonable PM would ever make a decision like this, given the circumstances." As you can imagine, that cannot be but in really exceptional cases.

Assuming such an exception does occur, does the Court have the power to compel the PM?

Under judicial review, the Court can order a public servant to discharge his duties.

Another case in point: In 1986, after J.B. Jeyaretnam's Anson seat was vacated due to a conviction, the Government's stated position in Parliament was that "there is nothing in the law that even requires a by-election to be held", and that this was also the opinion of the Attorney-General.

I cannot speak to this as I have not seen the advice and I do not know what the then Attorney- General took into account.

But surely it would be difficult to give that same advice today, given that this latest ruling says the PM must hold a by-election, and must do so "within a reasonable time"?

If the Attorney-General were to give advice today or in the future, his advice would take into account this latest ruling. But that does not mean the ruling cannot be subject to challenge, because if the matter went up again to a new Court of Appeal, the new Court of Appeal would be entitled to take a different view, taking into account all the evidence and arguments, the circumstances of the case and developments in the law.

The law is not an exact science. It is not uncommon for very learned and experienced lawyers to disagree on legal points. Indeed, even judges disagree, which is why decisions have been overturned on appeal, and even then, there may be dissenting views in the appellate court. The minority view today may well become the accepted position tomorrow. The law never stands still, which is why it is so challenging and exciting.

Judgment upholds the rule of law

What is your reaction to the ruling. Were you surprised by it?

Delighted. The earlier High Court ruling was not persuasive. So I thought there was a strong possibility that the Court of Appeal (CA) would disagree with that judgment on the substantive points. Hence, the CA decision wasn't surprising to me, despite the appeal being unsuccessful.

The ruling might also encourage more Singaporeans to challenge laws and executive actions they think are unconstitutional or are expressions of unfettered power. In the larger scheme of things, that's good for Singapore. It's a sign of our maturing as a democracy.

What is the significance of the ruling? Has anything really changed for the Prime Minister?

It was important that the Court clarified the meaning of Article 49 of the Constitution, resolving the question of whether a by-election had to be called to fill a vacancy. But even more important was the fact that the CA upheld the centrality of the rule of law. This means all discretionary power is subject to legal limits. There should be very few circumstances, if any, under which the PM's discretion is unfettered.

That said, I don't think the operating considerations have changed significantly for the PM, simply because the PM has not acted as though he has unfettered discretion on by-elections. There may have been political posturing in the past as to the PM's discretion but the law is now clear.

If you look back on both of the recent by-elections - Punggol East and Hougang - the PM indicated to the public that he was actively considering the matter but would not be bound by any timeline. Legally, it would be very difficult for someone to mount a challenge in those instances.

Also, both by-elections were held after a short time. Hougang after three months, and Punggol East within one month. They demonstrated the PM's recognition of his constitutional duty to hold a by-election to fill a vacated seat.

When Parliament was debating in 2008 a motion to set a time limit for holding by-elections, PM Lee said "the Prime Minister of the day has a discretion to decide when he wants to call or whether he wants to call (a by-election)". Does the ruling overturn this position?

Put simply, yes. If a future PM says he has absolute discretion over whether to call a by-election or if he goes so far as to declare he has no intention to, then he opens himself to a legal challenge. Based on this ruling, there are very good grounds for such a challenge.

But we must recognise that the ruling still gives the PM a fair measure of latitude. If Parliament's term is coming to an end, he can quite easily say he is not going to fill the seat in view of the coming general election. Even if the election is some way off, this ruling allows the PM to consider a very wide range of factors in deciding when to call for a by-election.

A delicate balancing exercise is at work - the voters' right to representation, and the PM's discretion as to when to call for a by-election, which the CA acknowledged is a "polycentric matter".

Eventually, we might see a constitutional convention develop and crystallise, based on practice, as to what constitutes a reasonable timeframe, as Professor Thio Li-ann has said. I think this will likely be the case.

But my personal preference is to legislate a time limit. This is the best way to ensure voters are not disenfranchised.

It also reduces political uncertainty. We won't have a situation where political parties engage in endless bickering and people get upset over what they see as the Government trying to leverage on its advantage of being able to decide when to hold a by-election.

The ruling says that the Court can intervene in the PM's discretion in "exceptional cases". What might an exceptional case be?

This would be the PM exercising discretion arbitrarily. If, for example, he does not hold a by-election simply because he believes his party would do badly. But this would be very difficult to prove.

Another example: Say, in the case of the Hougang by-election, if the PM had said he wasn't filling the seat because it was WP's fault for vacating it, and Hougang voters had to live with the consequences of voting for WP at the general election.

Assuming such an exception does occur, does the Court have the power to compel the PM?

If a challenge succeeds, the Court can rule that a by-election must be called promptly. The Court would be overstepping its powers if it prescribed an election date. That is the PM's prerogative, but he ignores the Court at his political and Singapore's peril.

The Court is not toothless. In extremis, if the PM ignores the Court, it can hold the PM to be in contempt of court. Of course, in a healthy, functioning constitutional democracy, the PM would have announced a timeline after the first ruling, to avoid a constitutional crisis.

A lot hangs on what the law means when it says a vacant seat "shall be filled by election". The earlier judgment by Justice Pillai (which has been overturned) said the phrase means that if the seat were filled, it had to be filled by election and not by any other method. This ruling says the phrase simply means it must be filled, and by election. What is your view?

On a plain reading of the phrase, the latter interpretation must stand. As such, it was difficult to understand the reasoning of the earlier judgment. The CA said the High Court's interpretation was "simply unwarranted", as it substantially modified the meaning of the law.

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