I hope it is not too vulgar or insensitive to blog about this now.  I certainly hope the lynch mob will not turn on me.  This is an issue about the law and so I am just wondering out aloud:

Is there a legal requirement to hold a by-election in a GRC where one of the seats has become vacant?  Should there be a by-election in Tanjong Pagar?

There has been a long tradition in Singapore of the state avoiding by-elections as much as they could.  The Anson by-election in 1981 kept the PAP nervy about by-elections for such a long time.  However, the application and eventual Court of Appeal decision in Vellama d/o Marie Muthu v AG (2013) had ensured that the PAP acted promptly in having by-elections in Hougang and Punggol East.  That case dealt with the situation involving the vacancy of a Single Member Constituency.  What is the legal position for GRCs?

This problem had arisen before when the MP for Bukit Batok passed away.  Several members of the PAP explained the reason why there was no need for a by-election as it was a GRC and there are other MPs in the group.  BN-HN696_0322LK_M_20150322225828

Let’s examine the law:

Article 49 of the Constitution of the Republic of Singapore
Filling of Vacancies
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.
(2) The Legislature may by law provide for —
(a) the vacating of a seat of a non-constituency Member in circumstances other than those specified in Article 46;
(b) the filling of vacancies of the seats of non-constituency Members where such vacancies are caused otherwise than by a dissolution of Parliament.

Therefore, if a seat is vacant and it is not because Parliament has been dissolved (i.e. this is not a general election) then the vacancy shall be filled by election.
The Constitution requires that the vacancy be filled by an election. Therefore, when an MP has passed away and there is a vacancy, a by-election must be held. As a result of the Vellama decision, this Constitutional provision is to be regarded as mandatory rather than discretionary.  The only discretion that the PM would have is on the timing of the by-election.

What is the manner in which the election is to be held? Article 49 states that the election will be in the manner provided by any law relating to Parliamentary elections.

There is a law relating to Parliamentary elections in Singapore. That is the Parliamentary Elections Act (cap 218). The relevant provision of the PEA is as follows:

Writ of election
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.
(2) Every such writ shall be in Form 1 in the First Schedule and shall specify the date or dates (referred to in this Act as the day of nomination) not being less than 5 days nor more than one month after the date of the writ and the place or places of nomination (referred to in this Act as the place of nomination).
(2A) In respect of any group representation constituency, no writ shall be issued under subsection (1) for an election to fill any vacancy unless all the Members for that constituency have vacated their seats in Parliament.

Section 24 deals with the issuance of a Writ of Election. During a General Election or when a by-election is called, the President issues a Writ of Election. Section 24, Subsection 2A, states that no writ of election shall be issued for a GRC unless all MPs in that GRC have vacated their seats.

On a surface reading of s.24 of the PEA, one would get the impression that there is no necessity to have a by-election. But, isn’t this inconsistent with the Constitution?

Article 49 is clear that the vacancy ought to be filled by election. At most it merely makes allowance for the election to be held in accordance with a procedure prescribed for Parliamentary Elections. The PEA is a statute that prescribes the procedures for parliamentary elections. However, the PEA attempts to assert that no Writ of Election shall be issued in the case of a vacancy of a seat in a GRC. This is clearly inconsistent with the Constitution.

The Constitution does not allow Parliament the discretion to pass a law that would negate a by-election. It allows Parliament to pass laws that would prescribe procedures for the conduct of elections. The words in the Constitution are very clear: “in the manner provided by or under any law”. It does not say that Parliament is permitted to pass laws that prevent the filling of vacancies. It says that vacancies must be filled. The manner in which they are filled can be provided under the law. However, the PEA seeks to exclude a by-election altogether. By providing that the President shall not issue a Writ of Election, the PEA has effectively overridden the Constitutional provision that an election shall be held.

Hence, should s.24(2A) of the Parliamentary Elections Act not be unconstitutional?

Article 4 of the Constitution:
This Constitution is the supreme law of the Republic of Singapore and any law enacted by the Legislature after the commencement of this Constitution which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.

Of course, even if we take the view that the vacancy of a seat in a GRC has to be filled, the fact remains that the next General Elections could be called anytime within the next 12 months.  Thus, it doesn’t seem to be practical to call for a by-election.  There’s every likelihood that the General Elections will take place this year itself.

For good reason, the opposition parties have remained silent about the issue of the vacant seat in Tanjong Pagar.  In fact, if a by-election were to be held in Tanjong Pagar GRC right now, PAP will be likely to win by a big margin.  I guess nobody really wants to push their luck.

(original post on 9 April 2015 ended here)

POSTSCRIPT (added on 12 April 2015)

Since I put up this post, the folks at TOC requested my permission to put it up on their site.  I gave them permission to do so.  TRS then went ahead to throw in an article in the form of some person writing to claim that a lawyer has written to TOC to say that a by-election in Tanjong Pagar is mandatory.  My post was then referenced and quoted.

A clarification is in order.  I am of the view that s.24(2A) of the Parliamentary Elections Act runs counter to Art 49 of the Constitution.  This is not the same as claiming outright that a by-election in Tanjong Pagar is mandatory.  This may sound like semantics to a layperson.

For the present, whilst the statute remains in place and remains unchallenged in court, s.24(2A) of the PEA gives sufficient cover to the PM to refrain from calling for a by-election.  This matter is not the same as the Vellama case.  In the case of Vellama (with regard to a by-election in a Single Member Constituency), the Constitution mandated the filling of the vacancy and the relevant provision in the Parliamentary Elections Act does not stand in the way of the holding of a by-election. S.24(1) & (2) set out the process of holding the by-election.  It was possible, back in 2012, to argue about whether or not a by-election was mandatory as Hougang is an SMC.

In the case of a GRC, there is statutory cover for stating that a by-election is not mandatory.  What needs to be done is to address the constitutionality of s.24(2A) of the PEA .

Before some eager beaver lawyer goes out there to get a constituent to commence proceedings for a by-election to be held in Tanjong Pagar, here’s a cautionary note.

The judgment in the Vellama case turned out to be positive for constituents in a single member constituency.  It is clear that the Court of Appeal has determined Art 49 to be a mandatory requirement for a by-election with the timing of the election being at the discretion of the PM.  But, in the judgment of Chao Hick Tin JA, there is evidence that the court was making a distinction between the logic behind parliamentary representation in a GRC and in an SMC.  At paragraph 80 of the judgment, the Court refers to the modification to the Westminster model that we have made (i.e. the GRC).

At paragraph 83 of the judgment it is stated:

“Having regard to the role of an MP in the Westminster form of government and on a plain reading of Art 49, it seems clear to us that the Constitution places a duty upon the Prime Minister to call a by-election (unless he intends to dissolve Parliament in the near future) to fill casual vacancies of elected MPs which may arise from time to time. Of course, in the present context, this will only apply to a SMC as there is a special provision where a vacancy arises in a GRC

That statement by the Court regarding the position of GRCs is not binding.  It is what lawyers would refer to as an orbiter statement.  The case itself did not involve a GRC.  Specific arguments about s.24(2A) and potential violations of the constitution were not addressed to the Court and the Court has not fully appraised itself of the issues pertaining to s.24(2A).  However, that statement in the judgment is going to operate as a serious hindrance to any person seeking to challenge s.24(2A).

Certainly any High Court judge would treat that statement by the Court of Appeal as being highly persuasive.  I do not myself agree with the observation of the Court.

The issue that I have with s.24(2A) is that instead of providing for a process by which Art49 of the Constitution is to be fulfilled (which incidentally is what s.24(1) & (2) seek to do), s.24(2A) prevents the holding of a by-election when a seat is vacant.

Much depends on how our courts are to carry out the interpretation of the Constitution.  Should the Act of Parliament be read together with the Constitution to produce a result that restricts Art49 or should any restriction of Art49 in an Act of Parliament be construed as a violation of the Constitution?

Where an Act of Parliament provides for a procedural restriction on a Constitutional right, should the procedural restriction be permitted to render the Constitutional right nugatory?  The holding of a by-election is an extension of the citizen’s right of representation in Parliament.

There is a further complication when it comes to GRCs and in any challenge involving Art 24(2A) arguments about the rationale for the GRC system will inevitably surface.

In electoral law, there is a principle that is often stated:  “one man, one vote, one value”.  In Singapore, we do not hear much about “one value”.  The idea is that each voter is assured of equal value for his vote.  As a resident of Hougang SMC, Voter A will have to be accorded the same value for his vote as as Voter B from Potong Pasir SMC or Voter C from Tanjong Pagar GRC.  One issue would be the voting population in each constituency.  If 20,000 voters are represented by one MP and 70,000 MPs are represented by one MP, then the voters in the bigger constituency are shortchanged.  That is an issue that exists in countries following the first-past-the-post system and different countries have adopted different solutions.

In Singapore, we have the additional issue of multiple systems of representation.  Instead of having all constituencies as SMCs or all constituencies as part of GRCs of the same size, we have adopted an approach of having SMCs and GRCs with no rationale for the differentiation.  Why should Hougang, Potong Pasir, Punggol East, Bukit Panjang, etc be Single Member Constituencies and why should Jurong, Tanjong Pagar, Marine Parade, Aljunied, etc be GRCs?  Why should the rationale for voter representation include the purported minority representation principle in some constituencies and why should it not be the case in others?  Do voters get equal value for their vote?

Is such an attempt to differentiate between constituencies consistent with the Constitutional principle of equal treatment under the law?  That is a different but related issue to the present question of s.24(2A) of the PEA.

There is a sickness in our law.  A cancer that has been coded into our electoral law.  That cancer is the GRC system.

The solution to s.24(2A) of the PEA is not a legal challenge to that provision.  The solution lies in the abolition of the GRC system.