By-election case: A legal or political question?

By-election case: A legal or political question?
Hougang resident Vellama Marie Muthu (left) made a bid last year through her lawyer M. Ravi (right) to get the courts to declare that the Prime Minister does not have unfettered discretion to decide whether and when to call by-elections.

The Court of Appeal recently ruled that the Prime Minister must call an election to fill a seat vacated by an elected Member of Parliament, overturning a previous decision by the High Court that the PM has the discretion to decide whether or not to call an election. Professor Thio Li-ann, a constitutional law expert, gives her analysis of the landmark decision.

SINGAPORE - By-elections are elections called to fill a parliamentary vacancy, in the period between General Elections. Before Parliament in December 1965, then Prime Minister Lee Kuan Yew successfully moved a constitutional amendment deleting the time limit from Article 33.

Article 49(1) is the current, substantially unchanged incarnation of this clause, which reads: "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."

The question of whether article 49(1) imposed a judicially enforceable constitutional duty on the government to call a by-election to fill a parliamentary vacancy was recently heard before the Singapore courts. The litigation was sparked off when the MP for Hougang, Mr. Yaw Shin Leong, was expelled from the Workers' Party on February 14 last year, causing a vacancy in Hougang Single Member Constituency (SMC).

Article 46(2)(b) of the Constitution provides that a Parliamentarian's seat becomes vacant: "if he ceases to be a member of, or is expelled or resigns from, the political party for which he stood in the election."

This provided the occasion for constitutional litigation, producing judgments from the High Court and Court of Appeal. These decisions differed significantly in various respects, including the determination of the substantive issue and the method of constitutional interpretation adopted.

In a nutshell, last August, the High Court found there was no constitutional duty to call a by-election; the PM enjoyed the discretion to choose whether to call a by-election and when to call one. The matter was then referred to the Court of Appeal.

But the Court of Appeal held that the PM was bound by an implied constitutional duty derived from Article 49 to call by-elections to fill casual vacancies. Further, while not stipulating a specific time period, the Court of Appeal drew from section 52 of the Interpretation Act (Cap 1) to find he had to do this with "all convenient speed". This is the statutory enshrinement of the common law concept of performing a duty within a "reasonable time".

These decisions are significant in clarifying aspects of the law on by-elections. They illuminate how the courts view the interaction of the foundational principles of the separation of powers and the rule of law, and whether legal or political checks should apply to an instance of decision-making.

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