Tuesday, February 28, 2012

By-election: When? not Whether!

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.

Sunday, February 19, 2012

Bye Yaw, and now for the By-Election

Anson was a long time ago. CV Devan Nair vacated his seat in Parliament before his elevation to the position of President. J B Jeyaretnam participated in the by-election for the Anson constituency and recorded that historic win against the PAP. 1981 seems like a distant memory now. The PAP stranglehold on Parliament had been punctured. There was a lone voice catapulted into the legislature willing to champion the cause of the people against the mammoth PAP government.
We had not progressed that much from then. At the very best (before 2011), the opposition managed 4 seats in Parliament. But, for the most part, it was just 2 seats. It was, therefore, fitting that last year (being the 30th anniversary of the Anson victory) another milestone was crossed in Singapore's electoral history. The fall of a GRC was a big psychological boost for the opposition and its supporters. It has also ushered in an unprecedented boldness and a willingness express views fearlessly.

The GRC itself was one of the methods by which the ruling party managed to keep the opposition at bay. There is no doubt in my mind that if the GRC system had never been introduced, the PAP would have lost more seats in earlier elections. (My views on the mechanics of domination exercised through the GRC..... )

Throughout this period from the 1980s to the present, the PAP has also been careful to avoid by-elections. To me, the most disappointing moment was when the Bukit Batok MP, Ong Chit Chung, passed away. There was a conflict between the Constitution and a statutory provision and in my view the Constitution ought to prevail. They made no Constitutional amendment and they just gave elaborate excuses and convinced the masses that no by-election was necessary. (I had blogged about this before.... ) In the end, Bukit Batok went without a member of parliament for nearly 3 years (July 2008 to May 2011).

And now, we have an opposition MP that has vacated his seat. A by-election has to be called. The problem is that our laws are silent as to the time limit for calling a by-election. Pursuant to the Constitution, when an MP is sacked by his Party, the MP's seat falls vacant. Under the Parliamentary Elections Act, the President has to issue a Writ of Election. No time limit is set for this. Under the Constitution, this is one of those powers of the President that does not come within his discretion and it is for the Cabinet to advise him. The problem now is the PM seems to think that there are pressing national issues and so he seems to suggest that a by-election is not within him immediate focus.

This is an area that has to be legislated. I hope that this issue is not left as a mere discretion and a certain timeline be set for by elections in the future. We could do it by legislation or if our politicians are mature enough a multi-party code can be devised where political parties can agree to hold by elections within a fixed time frame when there is a casual vacancy.

It is totally untenable to leave the question of a by-election hanging in the air and in fact it is irresponsible to let Hougang residents hanging in there without a member of parliament.

Saturday, February 18, 2012

The Politics of Affairs

When the issue of Yaw Shin Leong's affair first surfaced, I treated it the same way that I treat all gossipy tales of sordid affairs of the rich, famous or powerful. Stories like that deserve to be consigned to the thrash can. I don't really care if a celebrity has an affair. Nor do I care if a politician has an affair.

These indiscretions and their consequences have to be dealt with by the parties involved.In the case of a politician, my only concern is about the way in which he discharges his duties and functions. I want my MP to be an effective voice in Parliament. I want him to question the policy position of the executive. I want him to scrutinise legislation effectively. I want him to be mindful of the needs of the constituents and to represent these needs to the relevant persons and bodies so as to achieve the desired outcome.

I don't want my MP to be a passive observer in Parliament. I don't want him to be a 'Yes' man with nothing to contribute by way of policy scrutiny. I don't want him to rubber stamp every legislation that comes before Parliament.

If in the course of his position as an MP or Minister, a politician has an affair or he has had an affair in the past before coming into politics, none of this is of concern to me. I apply this principle equally to PAP MPs and Ministers as I would to opposition MPs. I remember hearing rumours about a certain PAP MP having an affair a long time ago. It was a rumour that had heavy circulation within the legal profession. I wanted no part of it as it was of no concern to me. There was understandably no news of the rumour in the media. But, the 135th press, living up to its low rating, sprung into action the minute there were rumours circulating about Yaw Shin Leong's affair.

As far as I am concerned, I would treat both issues in the same way. They are rumours and I don't really care about rumours. If there was truth in the allegations, again I don't care about the fact that a politician had an affair so long as he is able to discharge his functions. On that basis, there is no need for Yaw Shin Leong to resign or to be sacked by the party.

As we subscribe to the Westminister model of government, it might be useful to have reference to the constitutional conventions in UK with regard to personal misconduct. There is no specific convention relating to sexual misconduct by an individual MP. However, there is a convention pertaining to Ministerial Responsibility and there have been occasions involving ministerial resignation resulting from extra-marital affairs. Constitutional scholars in the UK are mostly of the view that a Minister's personal conduct involving sexual indiscretion does not trigger the convention of ministerial responsibility. The John Profumo scandal that led to the resignation of the minister involved an affair by the minister. However, the actual reason for which he resigned (and rightly so) was that he misled Parliament. It wasn't the affair. It was the lie.

However, there have been other ministers that have resigned as a result of being exposed as having an affair. These have been a result of public and Parliamenaty pressure rather than because of any Constitutional Convention. Quite apart from my own views that I do not expect my politicians to be saints, there is also no constitutional basis for insisting that a politician is answerable to the people for an affair that he had.

He has a lot of explaining to do to his wife and kids, of course. (And yes, kids. That is one good reason why I hate gossips about affairs. The more prevalent and public the gossip campaign, the more likely that the kids will come to know of it. It is not justifiable to expose young children to such 'news' of their parent. This is a matter that should be resolved within the family and if unresolvable, then I would expect the parties would end up in a divorce.)

Is the Worker's Party's move to expel YSL proper?

My initial view of the proper step to be taken by a political party is that an extra-marital affair should not be the basis on which the party member is expelled. I believe that the WP leaders must have initially taken that stance and concluded that it was not necessary for them to take any steps in relation to their MP? However, the very public witchhunt has pushed the hands of the Party to at first remove Yaw SL from his position in the Executive Committee and then to expell him.

The public explanation is that he has failed to give any adequate explanantion in relation to the alleged affair. This is one instance where the right to remain silent works completely against you. “No comment” is not the comment to make. The expectation that the party leaders would have had is that, at the very least, Yaw SL would give them an explanation. If it was indeed the case that Yaw SL did not explain himself to the WP, then the WP was entitled to take disciplinary action against him.

But, I wonder. Perhaps, it was a case of the WP leaders calculating that the fallout from the scandal could be too damaging for the party. Standing by a party member that had in fact committed adultery might sully the party's name. If more damning information were to emerge in public and it were to be clearly shown that YSL had an affair, then the political fallout for the WP could be too great. It is quite likely that sacking YSL was a form of damage control. It was probably an attempt to appear 'whiter than white.'

From a purely tactical standpoint, the WP move to sack YSL was probably the wisest thing that could have been done under the circumstances.

Did the Workers' Party let down its voters?

What can we say about the PAP? I didn't expect the rather opportunistic comments made by Mr Khaw Boon Wan. I kind of like the man. In a way, I didn't expect him to enter the fray. He claims that the WP may have misled the voters. PM Lee has gone further to say that WP has let the people down. How could that be? If a political party decided to climb the high moral ground, and demanded high standards from its MPs, it is something to be welcome.

The party has moved swiftly to assure Hougang residents. It has wasted no time in urging the PM to call for elections. It is imperative that a by-election be held so that the constitutents can have an MP representing them in Parliament. I remember the PAP conveniently avoided having by-elections in the past by an interpretation of the Constitution and the Parliamentary Elections Act in such a way that by-elections were unnecessary in a GRC when one seat became vacant. Creative? yes. Responsible? no.

I have no issues with the fact that having made the decision to demand an explanation from their MP, WP leaders being unsatisfied with his non-response had eventually taken the step to expel him. The most responsible thing to then do is to call for elections asap.

Having said all of that, I still stand by my original position that an extra marital affair is a non-issue. I am concerned about whether my MP can do his job. I am not concerned about whether he got himself a blow job.

A Humourous footnote

A rather funny by-product of the Yaw saga is the letter of demand from Mr Shanmugam's lawyers to the author of the Yawning Bread blog. They effectively demanded that a certain comment made by a 3rd party be deleted from the blog. They went on to demand that their letter be published in full. Alex Au (the blogger behind Yawning Bread) complied with both requests. The net effect of that is that the scandalous comments thrown in by some 'scroobal' has become the subject of further rumour mongering.Sometimes, the wisest thing to do is just walk away.