Court of Appeal overturns decision of High Court on by-elections
Published on Jul 06, 2013
By Andrea Ong
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."
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