July 5, 2013
THE Court of Appeal (CA) said on Friday, July 5, that Singapore's constitution does not give the prime minister unfettered discretion in calling for an election to fill a vacated seat of an elected Member of Parliament.
The court's three-judge panel said this in a 57-page document in which, at the same time, it dismissed the appeal of Hougang resident Vellama Marie Muthu against a High Court ruling last year that the prime minister does have the discretion.
In its judgment, the CA, said: "Art. 49 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 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."
In reaction, the Attorney General's Chambers said in a statement that it was studying the judgment carefully and would advise the prime minister in "due course".
The AGC also pointed out that the apex court said that the prime minister is entitled to take into account all relevant circumstances in deciding what is a reasonable time, and that his discretion can only be challenged in exceptional cases.
In a statement about the judgment, Vellama's lawyer, M Ravi, said, "It is a great day for democracy in Singapore."
He noted that it "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."
In reaction to Ravi's statement, an AGC spokesperson pointed out that the executive branch "does not have any authority independent of the Constitution or legislation" based on Singapore's system of government.
In February last year, the seat for Hougang SMC was vacated after its elected MP, the Workers' Party's Yaw Shin Leong, was dismissed after not coming clean to party leaders about his personal affairs.
After Prime Minister Lee Hsien Loong said he would consider whether or not to hold a by-election, given that there was no fixed time within which he needed to do so, the 43-year-old part-time cleaner went to court to file an application for a declaration that his views were contrary to the Constitution, and to the interests of residents in Hougang.
Last August, High Court Justice Philip Pillai dismissed her case, which hinged upon a clause in Article 49 of the Constitution that requires that vacancies created in constituencies "shall be filled by election".
Justice Pillai decided that the key term in the clause was "election", which means that the seat is filled by means of an election and not in any other way.
The Court of Appeal, however, said in its written judgment on Friday that the key lay in the word "shall", which indicates that a by-election must be held to fill the vacant parliamentary seat.
Following a 1965 parliamentary debate on the issue, a further clause requiring a by-election to be called within three months was deleted from the constitution -- a move that guided Justice Pillai's decision last year.
Despite this, the Court of Appeal wrote that "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 infinitely the calling of a by-election or even declaring that he will not fill the casual vacancy".
They did, however, agree that there is "no pre-determined time frame" for him to call a by-election, albeit noting that a seat that is left vacant for an "unnecessarily prolonged period" runs the risk of the residents in that constituency being under-served, due to there not being representation for their interests over that period.
Vellama's appeal was dismissed because, among other procedural grounds, she did not have standing to push her case forward after the Hougang by-election was called and held last May, added the CA.