Anyone that states that a by-election in Hougang is not mandated by law is talking stark nonsense. The only issue that is open for debate is the timing of the by-election.
The existence of a discretion as to the timing of a by-election cannot be converted into a discretion as to whether a by-election is to be held. I hope that the politicians that engage in this debate do not hijack the Constitution and that they acknowledge that the filling of the vacancy of a Parliamentary seat is a requirement. The discretion that the PM has is only with regard to the most appropriate time to hold a by-election.
So, let’s get the law right first. The starting point is Article 49 of the Constitution:
49. —(1) Whenever the seat of a Member, not being a non-constituency Member, has become vacant for any reason other than a dissolution of Parliament, the vacancy shall be filled by election in the manner provided by or under any law relating to Parliamentary elections for the time being in force
To determine what happens next, we have to look at the Parliamentary Elections Act (Cap 218)
Section 24. —(1) For the purposes of every general election of Members of Parliament, and for the purposes of the election of Members to supply vacancies caused by death, resignation or otherwise, the President shall issue writs under the public seal, addressed to the Returning Officer.
It is commonly accepted in judicial interpretation that the word ‘shall’ is to be construed as mandatory whenever it appears in a legislation. Therefore, when a seat falls vacant, the vacancy must be filled. For the purpose of filling that vacancy, the President must issue the Writ of election.
Whilst the elections have to be called by the President, the exercise of his functions are subject to the constitution.
Article 21(1) of the Constitution is as follows:
21. —(1) Except as provided by this Constitution, the President shall, in the exercise of his functions under this Constitution or any other written law, act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet.
The function of the President under the Parliamentary Elections act is therefore one that has to be exercised in accordance with the advice of the Cabinet. The fact that the President has to act in accordance with the Cabinet’s advice does not mean that the Cabinet can disregard the law or that it can disregard the Constitutional stipulation that a vacant seat shall be filled.
I hope that the public debate on this issue moves beyond the question of whether a by-election should be held to the question of when it should be held. It is the Constitutional right of Hougang voters that a by-election be held. The cardinal principle is ‘One man. One vote. One value.’ It is nothing less than the demand of reason that not only is every adult given the right to vote but also that every vote carries the same value. Whilst the rest of the Singaporean voters are represented in Parliament, 25,000 voters in Hougang are disenfranchised.
An MP is not merely a postman that that listens to a constituent’s complaint and forwards it to a government department. An MP is not merely a manager of housing estates. An MP is meant to be the powerful voice of the people in the loftiest forum in the land. He is a Member of Parliament and not merely a Mouthpiece of a Party. Party affiliation often nudges one to take particular political positions. I am not surprised by that nor do I expect that to be non-existent. But, the primary responsibility of the MP is to be the voice of the voiceless; to speak on behalf of those that silently suffer; to question the Executive in relation to the issues (local and national) that affect his constituents.
25,000 voters do not have a voice in parliament. Sure. This was brought on by Yaw Shin Leong. But, those voters are innocent. They have every right to have a representative in Parliament.
How soon must a by-election be held? Definitely not in 2015 or 2014. None in their right mind would suggest that as a reasonably expeditious timeframe within which to call a by-election. I would venture that even a period of 6 months enters the realm of unreasonable delay.
In fact, if we think very carefully about the constitutional role of an MP and the importance of the MP-constituent link for the workings of Parliamentary democracy, we would appreciate that every day that Parliament sits constitutes a day that the Hougang residents are deprived of representation. Every day that motions are raised, debated or passed constitutes a day that the Hougang residents did not have a say in that motion. Every day that statutes are debated, scrutinised, amended or passed constitutes a day that the Hougang residents have been deprived of a chance to shape a law through their representative.
There is, therefore, a strong case that can be made in favour of filling the vacancy before too many days, too many motions and too many laws are allowed to pass in Parliament whilst Hougang residents remain disenfranchised.
As Professor Eugene Tan of SMU rightly pointed out, Section 52 of the Interpretation Act states: “Where no time is prescribed or allowed within which anything shall be done, that thing shall be done with all convenient speed and as often as the prescribed occasion arises.”
All convenient speed. That is what Hougang residents expect and that is their legal right.