Is an unrestrained discretion compatible with the Rule of Law?

The official position in Singapore has always been that we respect the Rule of Law. When attempts by human rights organisations or foreign governments were made to run us down, our government has stood firm and insisted that we do respect the Rule of Law.

But, what does the Rule of Law entail?

A basic premise is the view that all exercise of power is subject to the law. I, as an individual, have no right to exert power over you in such a way that I might harm your property, your person or your life. Where I may attempt to do so, laws may legitimately be in place to prevent me from so harming you. This is reflected in a variety of criminal offences and civil liability. Equally, the state has no right to exert power over any of us except as it might have been lawfully authorised to do so.

At this juncture, we can take this in two directions. Firstly, the state is justfied in punishing us by depriving us of our life, liberty or property if we have breached a law that has been clearly stipulated. Secondly, the state is justified in exercising a general power of decision making in a way that affects our rights or activities so long as the same is done in accordance with the law.

The key here is the fact that the law is used as an objective and neutral intermediary between the state and the citizen. The state seeks justification for its actions in the law as predefined. The citizen demands that the state's power be exercised solely within the ambit of the predefined law.

This is all well and fine if the predefined law is in fact clearly defined. What if the law is vague? What if the law provides an area of discretion? What if the area of discretion is so wide as to render the law redundant?

Example 1:
In the event that a Parliamentary seat shall fall vacant, a by-election shall be held and towards this end a Writ of Election shall be issued by the President within 3 months of the date that the seat fell vacant.

Example 2:
In the event that a Parliamentary seat shall fall vacant, a by-election shall be held and towards this end a Writ of Election shall be issued by the President within a reasonable time.

Example 3:
In the event that a Parliamentary seat shall fall vacant, a by-election shall be held.

Example 4:
In the event that a Parliamentary seat shall fall vacant, the seat shall be filled by election.
In exercising his power to issue a writ of election, the President shall act on the advise of the PM.

All of the above examples contain discretion. The first example is restrictive and binds the President to issue a Writ of Election within 3 months. The second one restricts the exercise of discretion to a reasonable time. The third example doesn't stipulate a restriction. But, by requiring a by-election to be held, it does not leave it too vague to allow for an interpretation that might result in the election being postponed till the next general election. The fourth example appears to give a broad discretion for the seat to be filled and for this to be done in accordance with the PM's advise.

The broadest way of interpreting the 4th example is to say that the law provides that it is the absolute and unfettered discretion of the PM to determine when he would call for the by-election. Being an unfettered discretion as to timing, it might even be postponed all the way to the end of the Parliamentary term.

Although the 4th example is not on the exact terms as our Constitutional arrangement for by-elections, it is nevertheless similar. Our Constitutional arrangement is something that I blogged about here: http://article14.blogspot.com/2012/02/by-election-when-not-whether.html"

I beleive that the extent of discretion provided in the Constitution does not go as far as to permit the PM to decide whether a by-election should be held. But, it is however broad enough to be interpreted as giving him a broad discretion to decide when the by-election should be held. This is where the problem comes in. A discretion that is unrestrained and so broad is one that renders the rule nugatory. Unrestrained discretion is ultimately an afront to the Rule of Law.

Assuming that I am the King of this country and I were to declare that I will govern according to law, the expectation would be that my discretion would no longer be the basis of exercise of power. Power will now be exercised in accordance with law. But, what if I have a law that says: "Whatever the King determines to be the appropriate tax to be levied upon the people from time to time in his absolute discretion shall be the lawful tax." Such a law gives so broad a discretion to me that the law may as well not exist. The law negates itself.

Some of the broad interpretations of our Constitution as proposed by PAP leaders provide for such a possibility that the Constitutional guarantee of Parliamentary representation is rendered nugatory. Where possible, in upholding the Rule of Law, those that interprete the law (i.e. the judiciary) must adopt a restrictive interpretation on the exercise of discretion. Thankfully, in Singapore we have the Interpretation Act to assist us in relation to issues of timing. So, I believe that the PM's discretion to decide on the timing of the by-election should be restricted both by having regard to the Interpretation Act as well as by having regard to nothing less than the foundational and organizing principle of any rule-based society: the Rule of Law.

PM: I intend to call a by-election. I have not decided on the timing.

The PM has given his official response to the Hougang by-election issue. The following is the relevant part of his statement in Parliament:

"The Hougang Single Member Constituency (SMC) seat is vacant after the Workers’ Party expelled Mr Yaw Shin Leong, following several weeks of media reports on Mr Yaw’s personal indiscretions. I intend to call a by-election in Hougang to fill this vacancy. However, I have not yet decided on the timing of the by-election. In deciding on the timing, I will take into account all relevant factors, including the well being of Hougang residents, issues on the national agenda, as well as the international backdrop which affects our prosperity and security."

This is the proper response that we expect from our Prime Minister. I believe that if this was the first reponse from him when the news of the vacancy in Hougang broke, there would have been very little noise from the public. For sure, there would have been pressure for the by-election to be held sooner rather than later. But, the kind of loss of political capital that the PAP has arguably experienced as a result of brandishing technical arguments through semantics could have been avoided.

It is simple. The Constitution mandates a by-election. There is no 3 month time limit. It is the PM's discretion. He just needs to exercise it within a reasonable time. The PM has pretty much stated that this is the legal position and I have no qualms with that. All those people that were arguing about whether the PM can refuse to hold a by-election can crawl back into the woodwork. The PM has clearly acknowledged that he has to call for a by-election. It is a question of when.

PM Lee:

"Article 49 of the Constitution states that when a seat falls vacant it shall be filled by election. In an SMC, a seat falls vacant when the MP vacates his office, for example when he is expelled from his political party, resigns his seat, or passes away. The timing of the by-election is at the discretion of the Prime Minister. The Prime Minister is not obliged to call a by-election within any fixed timeframe."

And now we wait. My guess is May/June.

New Normal 101: How to react to a vacant Parliamentary seat?

There is general consensus that Singapore citizens have evolved. The old unquestioning attitude is still there in many quarters. But, a significant part of the population is questioning, demanding answers (often vociferously) and refusing to back down. Given the fact that the opposition vote in the 2011 Genereal Elections was slightly over 800,000 and that even amongst many PAP supporters there is a certain amount of disillusionment (that was partly reflected in the significantly small percentage of votes received by the "endorsed" candidate for the Presidential Elections), many commentators have boldly painted the picture of Singapore walking into a new era of politics.

There is no doubt that many citizens today have little tolerance for the politics of yesterday. 'More of the same' is no longer an option for the PAP. For a time after the General Elections last year, I started believing in the serious possibility that there might be a change of style in the way that PAP governs and seeks to govern in the future. But, recent events (threatened legal actions for defamation and refusal to call for a by-election in Hougang) appear to be an indication that it is difficult to teach an old dog new tricks. (For the avoidance of doubt, that is a figure of speech and not an insult in the vein of that PRC student's 'dog' remark.)

After the Yaw Shin Leong saga, I thought that the PM would play the game 'new-normal' style and affirm the Hougang residents' constitutional right. Instead, the knee-jerk reaction was to give an answer that was pretty much in keeping with the old approach. This has led me to ponder on how the PM could have reacted to the announcement of the Parliamentary vacancy. If I was the PM, this is how I would make a press statement:

"What has happened in Hougang is most unfortunate. Not only do we expect persons taking up public office to be of high competence and calibre but also to be possessed of good moral fibre. We do not know whether the rumours surrounding Mr Yaw were true. It appears now that when confronted by his own Party colleagues, he has failed to account to them on the truth or otherwise of these rumours.

Whatever may have happened, we do not seek to judge. The Parliamentary seat is vacant and the residents of Hougang have been deprived of representation in Parliament. This government is committed to the democratic franchise and the residents of Hougang have my assurance that a by-election will be held. I have not, as yet, made any decision as to the timing of the by-election. But, I will not stand in the way of the Constitutional rights of the citizens of this country. A by-election will be called expeditiously and a public announcement will be made in due course."

What has the PM got to lose by making the above statement? Nothing. The reality is that Hougang is a constituency that is not going to revert back to the PAP in a hurry. If the next General Elections are held in 2016, the PAP is bound to lose in Hougang barring some unforeseen developments. There is absolutely nothing to be gained in indefinitely postponing by-elections or in totally refusing to hold one. On the contrary, refusing to hold a by-election by relying on semantics does nothing more than alienate even the moderate voters.

How do you win political capital in a losing battle such as this? You change. You change your own operational philosophy. You recognise that political office is a privilege accorded to you by the electorate. You recognise that the right to vote and the right to have a representative in Parliament is too fundamental to be argued away. You internalise this concept more than any other partisan interests that you might have. Once you have done that, the words will come out naturally. People will notice the difference. People will begin to believe that change has not only taken root in the minds of the electorate but also in the minds of the political leaders. With that believe will come a willingness to engage in dialogue. With such dialogue, the groundwork for winning back votes can be laid.

You can't win back votes through perception management. You can do so if you change your thinking about democracy and the Constitution.

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.