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Court favors the Citizen’s Right to Parliamentary Representation
Today [Friday, 5 July 2013], the Court of Appeal ruled that the Constitution of Singapore “does not give the Prime Minister an unfettered discretion in the calling of an election to fill a casual vacancy of an elected MP. He must do so within a reasonable time”. In so doing, the Court has overturned an earlier High Court position that the Prime Minister had the authority to decide when and if a by-election should be held in the event of a Parliamentary vacancy.
Parliamentary vacancies
Hougang resident Madam Vellama D/O Muthu brought this issue to the Court on 2 March 2012 after the Member of Parliament from her voting constituency, Mr Yaw Shin Leong of the Workers’ Party of Singapore, had resigned from his party, thereby vacating his seat in Parliament.
In the event of a vacancy in Parliament, Article 49 of the Constitution of the Republic of Singapore states that the vacancy shall be filled by election. At the time of MP Yaw’s resignation, however, there had not been a by-election held in Singapore in over 20 years. Since the election of opposition MP J. B. Jeyaretnam in 31 October 1981, there had been three vacancies in Parliament which had been left unfilled, leaving constituents unrepresented in Parliament for as much as two years. Mdm Vellama appealed to the Court to make a declaration that the PM did not have unfettered discretion to determine whether or when a by-election should be held in the event of a vacancy in Parliament.
On 1 August 2012, High Court Justice Philip Pillai found in his ruling on the issue that the Prime Minister of Singapore had not only the authority to determine when to hold a by-election in the event of a vacancy, but also whether there should be a by-election at all. However, Justice Pillai did recognize that Mdm Vellama had acted in the public interest and not her own when she brought her challenge to the Court. For the first time in Singapore, it was determined that costs would not be ordered against a litigant who was before the Court in a matter of public interest.
Friday's ruling
In today’s judgement, Justices Chao Hick Tin, Andrew Phang Boon Leong and V K Rajah determined that, founded on their analysis of events, Mdm Vellama should not have been granted leave to bring her challenge to the Court in the first place. The justices based this on the fact that the Hougang Parliamentary seat had only been vacant for two weeks when Mdm Vellama asked the High Court to make the declaration that the seat must be filled. Further, the Court determined that Mdm Vellama had no cause to be heard before the High Court originally because at the time her case was heard, the Prime Minister had already announced that a by-election would be held in Hougang.
However, the Court did write extensively on Madame Vellama’s question, and whether the Prime Minister had unfettered discretion to call a by-election or leave a vacancy unoccupied. Drawing on the history of the Constitution and Parliamentary debates dating back to 1963, the Court found that "The voters of a constituency are entitled to have a Member representing and speaking for them in Parliament." Further, the judgement read, "... it seems clear to us that the Constitution places a duty upon the Prime Minister to call a by-election".
In so writing, Justices Chao, Phang and Rajah confirmed the Hougang resident’s position, that Parliamentary by-elections are not merely optional and in that regard the lower Court was incorrect in coming “to the conclusion that the Prime Minister is thereby 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 a casual vacancy.”
The Court determined that “if a vacancy is left unfilled for an unnecessarily prolonged period that would give rise to a serious risk of disenfranchising the residents of that constituency.” Therefore, the Prime Minister’s discretionary power is subject to legal limits and he has a duty to call for by-elections within a reasonable time subsequent to a vacancy.
Impact of the decision
Upon news of the Court of Appeal decision, Mr M Ravi, Mdm Vellama’s lawyer, stated, “This may be the first time the Singapore Courts have acted to interpret the Constitution in a way that has circumscribed the Prime Minister’s executive authority. It is a great day for democracy in Singapore. A year ago, who would have imagined that one Hougang citizen could take on such a challenge, in the interest of all citizens, and that it would result in the highest court affirming that Singaporeans do have a right to representation in Parliament.”
The excitement over today’s decision in Singapore has been a long-time coming.
In 1963, debating this very issue in the Legislative Assembly, Assemblyman Inche Ahmad Jabri Bin Mohammad Akib argued, "We have seen examples in Singapore, because of the absence of a particular clause which binds the Government; although we may try to put the blame on the previous Government, it is our responsibility today, when we discover the weaknesses, to rectify the errors. Should any vacancy occur in future, we do not wish to leave it to the whims and fancies of the Party in power… I consider this matter affects the destiny of the people of Singapore.”
Today’s ruling has finally set out to rectify those errors in the conduct of by-elections past and, in this new era of civil rights activism, it might well be a matter which affects the destiny of the people of Singapore.