Thursday, July 24, 2008

Is the Constitution redundant?

Dr Ong Chit Chung was the MP for my former constituency, Bukit Batok. I felt that as a mark of respect I should refrain from discussing the issue of a by-election until after the passing of a week. I have met the man on two occasions. Once at a meet-the-people session and once when he made a house visit as part of gathering support for the lift upgrading programme. My condolences to his family.

Now that his seat is vacant, should a by-election be held? What is the legal position?

According to the Today paper, Halimah Yacob (Jurong GRC MP) said that the constitution “does not require a by-election”.

Based on an earlier report from the Today paper, Dr Thio Li-Ann is supposed to have expressed the following views:

No by-elections need to held “until there’s no one left in the GRC”. But while there was no legal requirement, she was of the view that “when you elect a team, you elect a whole team; so since this is not the team anymore, you should see if people want a new team.” – Today, July 14 2008

Let us see what the Constitution says:

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.

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, s.24(2A) of the Parliamentary Elections Act is 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.

So, my question to those who claim that the Constitution does not require a by-election or those who try to adopt a ‘practical’ approach to the question of looking after the constituency is this: Have you read the Constitution? If not, please do so. If yes,please explain how the s.24(2A) of the Parliamentary Elections Act could be consistent with Article 49 of the Constitution.


Anonymous said...

It's possible to argue that Article 4 of the Constitution might form a reasonable defence against legislation that has contravened the spirit of the Constitution.

However, Parliament seems to be the dominant one out of the three, and hence Singaporeans tend to view things from the Legislative/Executive point of view, and most often than not, fail to understand the Constitutional ramification..

But it's good to point it out anyway..

Anonymous said...

Don't know whether it might be too far-fetched but is it possible to argue that the Constitution only states that the vacant seat must be filled by election but doesn't say when the election must be held?

So as long as no one is 'appointed' to the seat and it is filled during the next general election (assuming no walkover) then the Constitution is upheld.

Anonymous said...

I guess for me the best would be for the remaining members to step down so a by-election can be held as required.

Anonymous said...

Hi Subra,

I'm afraid you may have proceeded on a misinterpretation.

The concept of an elected MP's seat "becoming vacant" referred to in Article 49 appears to be a technical one. It seems that Article 49 must be read in light of Article 46(2), which reads:

(2) The seat of a Member of Parliament shall become vacant —

(a) if he ceases to be a citizen of Singapore;

(b) if he ceases to be a member of, or is expelled or resigns from, the political party for which he stood in the election;

(c) if, by writing under his hand addressed to the Speaker, he resigns his seat in Parliament;

(d) if during 2 consecutive months in each of which sittings of Parliament (or any committee of Parliament to which he has been appointed) are held, he is absent from all such sittings without having obtained from the Speaker before the termination of any such sitting permission to be or to remain absent therefrom;

(e) if he becomes subject to any of the disqualifications specified in Article 45;

(f) if he is expelled from Parliament in the exercise of its power of expulsion; or

(g) if being a nominated Member, his term of service as such a Member expires.

There is no reference to "death" here, and it's quite a stretch to fit "death" within any of the contingencies expressly described above.

The conclusion must be that an elected MP dying during his term of office does not amount to that MP "vacating his seat" for the purposes of Article 49.

Hence, I think the Government is safe from any accusation of unconstitutionality on this count.

Anonymous said...

Wow! Singapore must have the world's highest number of citizens if dead people can remain as citizens! Another truly uniquely Singaporean act! Turn in your ic to get your death cert but remain a citizen. Well, the hungry ghost month is just round the corner, I say, let them vote!

Anonymous said...

la nausée, actually point (b) would refer, wouldn't it?

he ceased to be a member of the political party for which he stood in the election, by virtue of his death.

Besides, point 49 clearly states "become vacant for any reason other than a dissolution of Parliament". This would refer to ANY reason, and not just the reasons listed in 46 only.

Subra said...

La Nausee>- you raise a very good point.
But, I would disagree with the interpretation that the phrase 'become vacant' in Art 49ought to be limited to the circumstances under which a seat becomes vacant as stipulated in Art 46(2).
On a very literal reading, Art 46(2) mandates that the seat of a MP would become vacant under the circumstances listed from (a) to (g). You are right in pointing out that 'death' is not listed expressly as a circumstance.

Firstly, I would contend that the interpretation of Art 49 should not be limited by the circumstances listed at Art 46. Article 49 deals with the vacation of a parliamentary seat other than via dissolution of Parliament. I would argue towards an interpretation that the vacation of a seat through death is a situation where the seat becomes vacant otherwise than through dissolution of Parliament.

But, I have to concede that there is sufficient room for the argument that Art 46 should be seen as a provision limiting the circumstances under which a seat becomes vacant and therefore those limited circumstances would apply to Art 49. I suspect that any constitutional support for the government's position can only arise from such an interpretation.

Secondly, I would contend that even if Art 46 is capable of subjecting Art 49 to a narrow construction, 'death' can be subsumed under either Art46(2)(a) or (b). Death is not specifically listed under Art 46(2). But a deceased person would cease to be a citizen of Singapore. Similarly a deceasaed person would cease to be a member of the political party for which he stood in an election.
As a natural consequence of his death the two circumstances are triggered.

I would venture therefore that Article 49 is still triggered and an election is mandated.

mica> on the issue of the timing of an election for the vacant seat, it is true that Art 49 does not specify when it should be held. However, since Art 49 deals with the seat becoming vacant other than through the dissolution of parliament, it would be logical to argue that the by-election should be held before the next general election. The general election would in any event take place when parliament is dissolved and the constitution could not have intended that the filling of the vacancy could be postponed to such a late date that it coincides with the general election. Such an interpretation would render Art 49 irrelevant.

Anon> The Hungry Ghost reference was brilliant. :-) Don't forget that our neighbours up north had lots of dead voters on their electoral register. Talk about a ready supply of compliant voters. :-)