The Hougang By-Election case - A belated analysis of the High Court judgment

It has been quite some time since the High Court delivered its judgment in the Hougang by-election case. I haven't found adequate time to read through the judgment in order to write about it. Thanks to a couple of hours of waiting time at the Hong Kong airport last month, I penned down a few quick thoughts. Finally, I have added some finishing touches and here it is. Better late than never, I guess.


Firstly, let me recall what I stated about the Constitutional position on vacancy of seats in Parliament in an earlier blog post way back in February this year:

"Anyone that states that a by-election in Hougang is not mandated by law is talking stark nonsense." http://article14.blogspot.sg/2012/02/by-election-when-not-whether.html


Now that the High Court has decided that "there is no requirement in the Constitution to call elections to fill elected Member vacancies" and that whether "to call or not to call an election to fill an elected Member vacancy is a decision to be made by the Prime Minister", I have to withdraw my rather extreme assertion. :-) I can't say that the court is talking stark nonsense, can I? (I might just go the way of the kangaroo t-shirt wearers)

Having read the judgment, I have to admit that it sets out a well-argued position. In any event, I still hold a view contrary to that expressed by the judge and I will explain this along the way and summarise it towards the end of this post.



Firstly, how does the judgment proceed?



For those that might be put off by the length of the judgment, the good news is that the first 19 pages of the judgment deals with a procedural point relating to the type of relief that can be claimed under specific provisions in the Rules of Court in judicial review cases. This is not relevant for those interested in the issue of whether the Prime Minister has the sole and unfettered discretion in deciding whether to call a by-election.



The main issue: "shall be filled by election"



Article 49(1) of the Constitution refers to the situation where a seat becomes vacant and stipulates that the vacancy "shall be filled by election". The High Court judge has rightly decided to situate the phrase within the context of other usages in the Constitution as well as the historical context of its usage.

Firstly, the judge presents the possible interpretation of "shall be filled by election" as being a reference to a process on the one hand or alternatively a reference to the event, i.e. the holding of an election. He spells it out as follows:

The word "shall" ordinarily means that whatever it is referring to is mandatory. However, what is being mandated by the word "shall" in Article 49(1) is not immediately clear, because "election" can mean either: (a) an event, in the sense of, "to hold an election"; or (b) a process, in the sense of, "by the process of election".

Proceeding on the assumption that there are two possible interpretations of the phrase "shall be filled by election", the Court assesses the historical origins of the phrase in Art 49(1). It is here that I believe that the judgment took a wrong turn. Working with his interpretation of the 2 meanings of the phrase ('to hold an election' and 'by the process of election'), it is clear that the judge has decided two possible outcomes although he doesn't expressly state that at that stage of the judgment. But, the net effect of the court's assumption is that the phrase is capable of giving rise to only two possible outcomes:

a) 'to hold an election' - where there is a vacancy, an election must be held

b) 'by the process of election' - where there is a vacancy, it may or may not be filled. But, if it is filled, then it must be through the process of having an election instead of some other process such as nomination.

I take the view that if we were to consider "shall be filled by election" to contain multiple meanings, then the following meaning could also be attributed to the phrase:

a) where there is a vacany, it must be filled and the filling of that vacancy must be by the process of election instead of any other process.

The judge analysed that the mandatory word "shall" could relate to either "election" as an event or "election" as a process. By associating "shall" with "election", the specific mode of reasoning deployed by the court is possible. But, the word "shall" is more naturally associated with the word "filled". What is mandatory in my view is the filling of the vacancy.

Let me draw an analogy with another situation to illustrate this point about linguistic usage and interpretation. Let’s assume that an instruction is communicated in the following form:



‘If this glass becomes empty, it shall be filled’



The mandatory word ‘shall’ is associated with the filling of the glass. No multiple meanings are possible.



Let’s try another form of this instruction:



‘If this glass becomes empty, it shall be filled by dipping into a pot of water’



Based on the interpretive approach adopted by the High Court, we could arrive at two possible meanings:



a)If the glass becomes empty, the glass must be dipped into a pot of water

b)If the glass becomes empty, then the filling of the cup must be done by dipping into a pot of water and not by any other means (such as pouring water from a kettle).

In the first interpretation, the mandatory shall is associated with dipping into the pot as an event that must occur.

In the second interpretation, the mandatory shall is associated with the dipping into the pot as a process so that the process is mandatory if, and only if, a decision to fill the empty glass has been made in the first place.



I venture that there is a 3rd interpretation that is highly consistent with the statement ‘if this glass becomes empty, it shall be filled by dipping into a pot of water.’:



If the glass becomes empty, the glass must be filled and the filling of the glass must be by dipping into a pot. The word shall is to be both associated with the mandatory requirement of ‘filling’ as well as the mandatory nature of the ‘process’ of filling.



It is this third possible interpretation that the Court had failed to address in its judgment and one that I feel should be properly raised during the appeal.


Whilst reading paragraph 60 and 61 of the judgment, I formed a disagreement in my mind over the dualistic approach presented by the court. But, I decided to suspend judgment until I read through the historical context that the court presented. After all, there could have been something in the historical context that indicated that the filling of the vacancy was not mandatory and only the process by which the filling took place was mandatory.



Up to paragraph 80 of the judgment, the judge took some effort to demonstrate the different processes by which vacancies are to be filled for different types of members of Parliament. We have Nominated MPs, Non-Constituency MPs and elected MPs. The Court demonstrated that the Constitution provided for different processes for the filling of vacancy of each type of seat in Parliament. This led the judge to come to the conclusion that the mandatory “shall” in Art 49 referred to the process.

“It is abundantly clear that a nominated Member can only be appointed and not elected. It is also clear that non-constituency Members can only be declared elected under the Parliamentary Elections Act. Accordingly, elected Member vacancies are to be filled only by election. It must therefore follow that the phrase “shall be filled by election” in Article 49(1) refers to the process whereby the vacated seats of elected Members are to be filled.”

I have to pause here again. I agree that the Constitution provides for different methods for the filling of a vacancy. But, the fact that there are different methods does not mean that the word “shall” in Art 49 related to process of filling the vacancy instead of the filling of the vacancy itself. Let me refer to section 4 of the Fourth Schedule to the Constitution:

4.—(1) Whenever the seat of a nominated Member has become vacant by reason of the expiry of his term of service, the vacancy shall, as soon as practicable, be filled by the President by making an appointment on the nomination of the Special Select Committee referred to in section 1.

(2) Whenever the seat of a nominated Member has become vacant for any reason other than a dissolution of Parliament or the expiry of his term of service, the Special Select Committee may, if it thinks fit, nominate a person for the President to appoint as a nominated Member to fill the vacancy.

I have highlighted the words ‘shall’ and ‘may’ in sections 4(1) and 4(2) respectively. This provision deals with the NMP position.

Firstly:

When the NMP’s term of service expires, the President is required to fill it and in filling it the stipulated process is by nomination from the Special Select Committee and appointment by the President

Secondly:

When the NMP’s seat is vacant for some other reason (e.g. death), the President is not required to fill the vacancy. Instead, it is stated that the Committee may nominate a person for the President to appoint as NMP. Clearly, the absence of the words ‘shall be filled’ indicates that there is no mandatory requirement for the filling of the vacancy and only that there is a discretion as to whether or not it is filled and if it is to be filled the process of nomination by the Committee is to be followed.



It is clear from these provisions that the Constitution draws not only distinctions in terms of the process of filling a vacancy but also distinctions in terms of whether the filling should be done.

Where it is an NMP whose term has expired, the vacancy must be filled and the process of filling is stipulated as being by way of nomination.

Where it is an NMP whose seat has become vacant for other reasons, the filling of the vacancy is discretionary and if it is to be filled, then the process is provided for.

Where it is an elected MP whose seat has become vacant, then the vacancy must be filled and the process of filling that seat is by way of election.



I do not agree that the Constitutional provisions on the filling of Parliamentary vacancies lend credence to an interpretation that the mandatory ‘shall’ in Art 49 is to be associated only with the process of filling the vacancy. “Shall” has been used in the Schedule to the Constitution in relation to NMPs to indicate that the ‘filling’ is mandatory. Where the ‘filling’ is not mandatory, the word ‘may’ has been used. This structure lends more credence to an interpretation that wherever the word ‘shall’ has been used in relation to the filling of a vacancy, the filling as well as the process of filling would be mandatory.

The historical origins of Art 49

During the colonial period, our Legislative Assembly progressed from being Nominated House to a partially Nominated and partially Elected House. The High Court looked at this progression and referred to the Singapore Colony Order of 1955. I quote from the Judgment:

"95 Another significant feature of the 1955 Order was that it changed the mode of filling vacant seats in the Legislative Assembly. It no longer empowered the Governor to appoint Temporary Members to fill vacancies. Instead, depending on whether the vacant seat was one of a Nominated or Elected Member, sections 51(1) and 51(2) of the 1955 Order set out how each respective vacancy was to be filled.

96 Section 51 of the 1955 Order is the original source of Article 49(1) of the current Constitution. The exact wording of section 51 of the 1955 Order is crucial as it brings into clear light the meaning of Article 49(1) of the Constitution."

The 1955 Order:
Filling of vacancies

51.—(1) Whenever the seat of a Nominated Member of the Assembly becomes vacant, the vacancy shall be filled by appointment by the Governor in accordance with the provisions of this Order.
(2) Whenever the seat of an Elected Member of the Assembly becomes vacant, the vacancy shall be filled by election in accordance with the provisions of this Order.


The Judge added:

"97 It is immediately apparent that the expression “shall be filled by election” is common to both section 51(2) of the 1955 Order and the current Article 49(1) of the Constitution. Yet, there was no ambiguity in the meaning of the expression “shall be filled by election” in section 51(2) of the 1955 Order, because section 51(1) used the contrasting expression “shall be filled by appointment by the Governor”. Such an expression clearly meant that “election” in section 51(2) referred to a process and not an event, and the word “shall” in sections 51(1) and 51(2) of the 1955 Order mandated the process of filling the seat. In other words, under section 51(2) of the 1955 Order, whenever the seat of an Elected Member of the Assembly became vacant, the only process that could be used to fill that seat was by election and not by appointment. Subsequent constitutional provisions that originated from section 51(2) of the 1955 Order and containing the same expression have the same meaning unless the text was intentionally changed.


98 The expression “shall be filled by election” in Article 49(1) of the Constitution subsequently became obscure because the distinction between the processes of appointment and election in the 1955 Order was lost in subsequent Orders in Council and later, the Constitution. It is therefore important to follow the precise chain of events in our history to understand how and why this distinction became obscure."

The Judge then went on to explain how our legislature eventually became a fully elected body and the distinction in the two processes of filling vacancies became lost and “shall be filled by election” became obscure.

I beg to differ with the Court’s reasoning. The transition from from 1946 to 1955 was not merely a change in the composition of the legislative body and the method of replacing vacancies but also a transition from the discretionary ‘may’ to the mandatory ‘shall’. Whereas the 1946 order gave discretion to the Governor as to whether the vacancy was to be filled, the 1955 order stipulated that the vacancy ‘shall’ be filled (i.e. must be filled). Leaving aside the way in which Elected Members were to be dealt with, the clear difference in the way Nominated Members were to be treated is evident for all to see.

In the 1946 order, the Governor had an option to decide whether to fill the vacancy of any member. In the 1955 order, the Governor had to fill the vacancy (and in so doing was to use the process of appointment). Insofar as the Elected Members were concerned, the vacancy had to be filled and the process of filling was by way of election. This new provision used the mandatory ‘shall’. It is clear to me (especially with the contrast made with the 1946 Order) that the 1955 Order was intended to cause the filling of the vacancy to be mandatory as well as the process to be mandatory. In the case of Nominated Members, any vacancy had to be filled. In the case of Elected members, any vacancy had to be filled. For Nominated Members, the filling was by appointment and for Elected Members, the filling was by election.

Eventually, when our Parliament became a fully elected House, the distinction between Nominated and Elected MPs disappeared. However, that disappearance doesn’t obscure the meaning of the Article 49 of the Constitution. Article 49 still echoes the transition made from discretionary filling of a vacancy to the mandatory filling of the vacancy.

I’d like to go back to paragraph 95 of the Judgment:

“95 Another significant feature of the 1955 Order was that it changed the mode of filling vacant seats in the Legislative Assembly. It no longer empowered the Governor to appoint Temporary Members to fill vacancies. Instead, depending on whether the vacant seat was one of a Nominated or Elected Member, sections 51(1) and 51(2) of the 1955 Order set out how each respective vacancy was to be filled.”

If I were to modify this to reflect my interpretation, then my modification of it would be as follows:

'Another significant feature of the 1955 Order was that it changed the mode of filling vacant seats in the Legislative Assembly. It no longer gave the Governor discretion to appoint Temporary Members to fill vacancies. Instead, depending on whether the vacant seat was one of a Nominated or Elected Member, sections 51(1) and 51(2) of the 1955 Order set out that each respective vacancy had to be filled and in doing so the process of filling was by appointment for the former and by election for the latter.'



What transpires is that instead of assisting the Court's reasoning in seeing Art 49 of the Constitution as presenting a discretion in the filling of a vacancy, the legislative history indicates that Art 49's origins lay in the transition from a discretionary filling of vacancies to a mandatory filling of vacancies. The irresistable conclusion that should be arrived at is that Art 49 removes discretion from the Executive in the filling of the vacancy and the manner of filling the vacancy. What is left is the discretion to decide on the timing of the filling of the vacancy.

The Judge also traced the development from 1958 through our merger with Malaysia to the eventual split and in the process discussed the temporary insertion of the 3 month limit during merger and the removal of the limit after independence. This removal was debated in Parliament and was justified by the legislature. To me the fact that the 3-month limit for the filling of the vacancy was removed does not equate with introducing a discretion as to whether the vacancy should be filled. It merely introduces a discretion as to timing of the filling of the vacancy. The vacancy must be filled. It must be filled by election. But, the timing of the election is not fixed and is therefore discretionary. This would then give rise to the question of what is a reasonable period of time within which a by-election should be called.



Summary:


Contrary to the Court's interpretation that there are two possible meanings to the phrase “shall be filled by election” in Art 49 of the Constitution, I am of the opinion that if we were to get into the process of seeking multiple meanings in that phrase, then a comprehensive approach would be to accept that there are three possible interpretations:

a) an election must be held (event of 'election' must happen)

b) if the vacancy is to filled then it must be by way of election (process of filling must be by way of election).

c) the vacancy must be filled and filling must be by way of election. (event and process)



The 3rd interpretation is not only the linguistically most natural interpretation, it is also consistent with the arrangement of the provisions in the Constitution (where the word 'may' instead of the word 'shall' is used for the filling of NMP seats and should be contrasted with the word 'shall' for the filling of elected MP seats – the difference is not merely related to the process but to the very 'filling' of the vacancy itself). The 3rd interpretation is also consistent with the historical development of the elected members' seats in Parliament. The 1955 Order moved away from discretionary filling of vacancies to the mandatory filling of vacancies.



The “shall” in the 1955 Order as well as Art 49 of the current Constitution is in relation to the “filling” of the vacancy as well as the process of filling that vacancy.



The Vellama case has already become a Constitutional milestone by virtue of the High Court's decision to not order costs against her in view of the strong public interest that exists in the interpretation and application of Art 49. The most fundamental of all rights in a democracy is the right to vote. The case is now proceeding to the Court of Appeal. Hopefully, the Court of Appeal would create another milestone by interpreting the Constitutional provision in a restrictive manner to prevent the Executive from exercising excessive discretion.



It is an important feature of the rule of law that wherever possible governmental action must be governed by law. Where discretion exists, then it ought to be the duty of the Courts to apply the law restrictively so that the area of discretion is limited and the manner in which discretion is exercised is subject to scrutiny and oversight. The 3rd interpretation not only has (a) the merit of consistency with the arrangement of provisions in the current Constitution and (b) is historically traceable to the development of the 1955 Order, it is also (c) compatible with adopting a restrictive interpretation to prevent excessive discretion from being conferred on the Executive arm. Besides, it is also linguistically the most natural meaning of the phrase.



Whilst I agree that the interpretation adopted by the Court is not impossible, I suggest that it is less probable than what I have proposed as the 3rd interpretation. In any event, it is going to come down to interpretation and which way the Court of Appeal is likely to go is not going to be easy to predict.



If the Court of Appeal upholds the High Court's decision, then this issue has to be resolved through Constitutional amendment by Parliament. The opposition parties have to seriously consider whether they would want to make the issue of this Constitutional amendment a part of their manifesto in the next elections as the right to vote is too fundamental to be given away simply because of a lack of clarity in the provision.