By-election ruling still gives PM discretion

Last week, the Court of Appeal ruled that the Prime Minister must call an election to fill a vacated parliamentary seat within a reasonable time.

The ruling overturned an earlier one by the High Court, which said that the Prime Minister had full discretion over whether to hold an election.

The case began in March last year when Hougang resident Vellama Marie Muthu made a bid to get the court to declare that the Prime Minister does not have unfettered discretion to decide whether and when to call by-elections.

She did so after the Hougang seat fell empty when the Workers' Party sacked then MP Yaw Shin Leong. Elgin Toh speaks to lawyer and MP for Bishan-Toa Payoh GRC Hri Kumar Nair and law professor and Nominated MP Eugene Tan on the ruling. They debated publicly on whether and when by-elections had to be called after the seat was vacated last year.

Don't confuse PM's legal duties with what people think he should do:

MP What is your reaction to the ruling? Were you surprised by it?

The Court of Appeal took a view on Article 49 of the Constitution (regarding a vacated seat), and the scope of the Prime Minister's duties thereunder. There is no issue of surprise.

What is the significance of the ruling? Has anything really changed for the Prime Minister?

The ruling does not contradict Prime Minister Lee Hsien Loong's statement in Parliament in March last year, shortly after the Hougang seat was vacated.

The PM stated that he had discretion on when to call a by-election, and when exercising that discretion, he would consider all the circumstances of the matter, including the interests of the voters of Hougang. That is how the Court has framed his duty.

There was previously confusion in the media because some commentators suggested that calling a by-election was "automatic" or should be "immediate", and that the PM must publicly explain if he delays calling one. That is not the law.

So even after this ruling, you believe the PM does not have to give a public explanation for delaying a by-election?

We must not confuse the PM's legal duties with what some people think he should do politically. The PM is not legally required to publicly explain his decision process or what matters he is taking into account.

When Parliament was debating in 2008 a motion to set a time limit for holding by-elections, Mr Lee said "the Prime Minister of the day has a discretion to decide when he wants to call or whether he wants to call (a by-election)".

Does the ruling overturn this position?

Not necessarily. For example, one of the things the Court said is that the PM may decide not to call a by-election if the next general election (GE) is to be called soon - the Court suggested a 12- to 18-month timeframe. In such a case, the Court appeared to take the position that the PM has the discretion not only over when to call, but whether to call.

But what if the seat were vacated shortly after a GE, years before the next GE is due?

The ruling still gives a PM very wide discretion, because it says the reasons that a PM can take into account are varied. He can consider all relevant circumstances, including domestic and international issues.

Also, let's not forget that a PM has the right to call an early GE, and that possibility could be the reason for him not calling a by-election. So it will be very difficult for anyone to say: "The PM hasn't called a by-election, so he must not be obeying the law."

The ruling says the Court can intervene in the PM's discretion in "exceptional cases". What might an exceptional case be?

This would be extremely rare, because the discretion is so wide. The Court would have to put itself in the shoes of the PM of the day, consider the whole spectrum of issues and then confidently say: "No reasonable PM would ever make a decision like this, given the circumstances." As you can imagine, that cannot be but in really exceptional cases.

Assuming such an exception does occur, does the Court have the power to compel the PM?

Under judicial review, the Court can order a public servant to discharge his duties.

Another case in point: In 1986, after J.B. Jeyaretnam's Anson seat was vacated due to a conviction, the Government's stated position in Parliament was that "there is nothing in the law that even requires a by-election to be held", and that this was also the opinion of the Attorney-General.

I cannot speak to this as I have not seen the advice and I do not know what the then Attorney-General took into account.

But surely it would be difficult to give that same advice today, given that this latest ruling says the PM must hold a by-election, and must do so "within a reasonable time"?

If the Attorney-General were to give advice today or in the future, his advice would take into account this latest ruling. But that does not mean the ruling cannot be subject to challenge, because if the matter went up again to a new Court of Appeal, the new Court of Appeal would be entitled to take a different view, taking into account all the evidence and arguments, the circumstances of the case and developments in the law.

The law is not an exact science. It is not uncommon for very learned and experienced lawyers to disagree on legal points. Indeed, even judges disagree, which is why decisions have been overturned on appeal, and even then, there may be dissenting views in the appellate court.

The minority view today may well become the accepted position tomorrow. The law never stands still, which is why it is so challenging and exciting.

elgintoh@sph.com.sg

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