The Online Citizen

AGC appeals against decision in by-election case

April 04
17:54 2012

~ By Gangasudhan ~

The Attorney-General has just filed a Notice of Appeal against "whole of the Honourable Justice Phillip Pillai’s decision on 3 April 2012" and is also additionally seeking for the "appeal to be heard on an expedited basis" – possibly sometime this week.

According to documents served on the respondent, Mdm Vellama, through her lawyers, the appeal is against the decision (a) to allow the application for leave to apply for a Mandatory Order, and (b) to allow the Respondent to apply for a Declaration.

As to the reasons why the AG is seeking an expedited hearing "at the earliest possible date and in any event, before 16 April", the document states:

(a) the Respondent consistently argued that her application is made on the basis that the matter concerned is of great urgency; and, (b) the hearing for the Respondent’s substantive application is fixed on 16 April 2012 at the Respondent’s request for an early hearing date

Mdm Vella's original application to the Supreme Court is to ask the court to issue the following ruling:

Mandatory Order enjoining the Prime Minister

a) To advise the President to issue a Writ of Election mandating by-elections in Hougang SMC pursuant to Article 49(1) of the Constitution of the Republic of Singapore (1999 Rev Ed Sing) and Section 24(1) of the Parliamentary Elections Act (Cap 218, 2011 Rev Ed Sing); and

b) To tender such advice in accordance with [the paragraph] above within three months or within such reasonable time as this Honourable Court deems fit

Declaration (by the Supreme Court)

a) That the Prime Minister does not have unfettered discretion in deciding whether to announce by-elections in Hougang Single Member Constituency ("SMC")

b) That the Prirne Minister does not have unfettered discretion to decide when to announce by-elections in Hougang SMC and must do so within three months or within such reasonable time as this Honourable Court deems fit

__________________

 
  • Hogzilla

    Interesting.
     
    What new evidence(s) / argument(s) are AGC going to put up in the appeal? Will they say M Ravi do not have a practising lawyer license? Or Mdm Vellama has no right to ask for a by-election so that she can have a representative representing her in the parliament? PM's intention to call for by-election = he will call for one? 
     
    Some of the reason I gave above are troll but I'm really interested in what new evidence(s) / argument(s) AGC is going to put up.

  • Kampong boy

    May be because she is not an elite?

  • http://www.singaporeenbloc.blogspot.com The Pariah

    Hougang by-election is a matter of "public interest" and goes to the core of our Constitution. 
     
    As the Chinese have a saying: "Real gold fears not intense heat". 
     
    So why is the AG's Chambers so intent on burying this?  Just let the open court hearing take place and let Singaporeans hear arguments from both Applicant and Respondent. 
     
    Let the due process run and let the High Court decide fairly, justly and OPENLY. 
     
    The Constitution protects the Judiciary.  Will the Judiciary in turn protect the People?

  • Momo

    If Mdm Vellama can afford the court fees, it shows that the government is not elitist to the extent of depriving Singaporeans who have only primary school education the opportunity to have a decent living.  

  • seasand123

    The game is getting more and more intresting. The ball is in the court of the MIW. They'll do anything in their power to sustain their grip on power and lets see how this tussle as who has the last say is goig to fan out.
    One thing is for sure, depending on te outcome of this case the moral authority of the MIW will be scrutinized by most Singaporeans and that may or may not bode well for the ruling party.

  • adam

    Poor Justice Phillip Pillai.Will his peers run to his aid or will they just sit by and watch a brave and JUST man go down the tube????

  • fearful

    Why is pinky so fearful of a simple by-election–how to lead a nation with such an attitude.

  • The Truth Seekers

    Knowing the outcome of the open court will be pure truth that can embarrass the ruler, the AG chamber quickly appeal against Justice P. Pillai decision. 

  • ts

    is this the begining of the end of Justice Phillip Pillai's career?

  • son of s

     
    In search of the New Sensible, even the fierce military junta of Myanmar has found it wise to let the water find its own level and allowed Aung San Su Kyi her turn at governing the country. Almost all seats were won by her party in the  elections carried out yesterday.
    Will the Myanmar military junta unleash their version of the ISD or their defamation lawyers on Aung? Time will tell. The Ruling Elite in Singapore should not brush aside what is taking place in the Arab Springs and now in Myanmar. A new sensible in indeed on the horizon which is life bearing and sustainable for the long years of the 21 st Century.

  • Steve Wu

    In the Parliamentary Debates on 22 December 1965, Lee Kuan Yew argued in support of No. 8 of 1965:
    "Article 7 revokes a clause which was introduced into the State Constitution of Singapore when it entered Malaysia. Members in this House will know that there was no such injunction of holding a by-election within three months in our previous Constitution. We resisted this particular condition being imposed upon the State Constitution at the time we entered Malaysia, but our representations were not accepted because Malaysia insisted on uniformity of our laws with the other States in the Federation and with the Federal Constitution itself. Since we are no longer a part of the Federal whole, for reasons which we find valid and valuable as a result of our own experience of elections and of government in Singapore, we have decided that this limitation should no longer apply."
     
    Indeed, Lee Hsien Loong also highlighted this piece of constitutional history in his statement on Hougang recently.  The problem is that the Legislature of 1965 had no authority for such a reversion. I'll explain.
     
    The electorate supported the merger in a national referendum, and it thereby accepted a new State Constitution when Singapore joined the Federation of Malaysia.  In separation, the Independence of Singapore Agreement 1965 ensured the continuity of laws.
     
    Now the provision of by-election is an Article of the Constitution (Article 33 of S.I. 1963 No. 1493) and its amendment requires the support of two-thirds majority of Parliament (that it had) and the consistency with the Constitution (that it wasn't).  No. 8 of 1965 repealed Article 33 and replaced it with Article 49 without "within three months" condition.  A non-null condition and its negation are always logically different and cannot be made consistent.  Therefore, the amendment is inconsistent with the preceding Constitution, hence by the supremacy of the Constitution, it is void.
     
    It would have required another national referendum to pass the amendment act lawfully.  Indeed, in the next 47 years, many unconstitutional amendments were passed in blatant contempt of the supremacy of the Constitution (see and remember Article 4).
     
    It is time to unravel the unconstitutionality, starting with this one.  The Attorney-General shall have an unarguable case for the Hougang by-election.

  • Really?

    As a layman I thought this is just a simple matter for the court to decide what should be a reasonable time allowed for PM to make his decision.  The purpose and spirit of the constitution should be above any party's interest.

  • black_dot

    Is Singapore falling behind Burma I wonder?

  • Damn

    What's there to appeal? PM didn't think the by election was necessary? What is holding him back? Delay tactic so that miw have more time to work the Hougang ground? I can't help but feel this whole episode is a miw wayang.  

  • anon

    Basically the govt is fearful that this would open the floodgate for a lot more of challenges across the board. The opposition should muster its resources to tip the scale against what amounts to a last ditch battle by the govt to hold back the progressive forces against its continued dominance of local politics.

  • Potex

    AG is government body and should be apolitical.  They should not be taking sides in this instance.  The court just interpret the laws and do not play politics as said by CJ.  AG should let the case goes to the court. 

  • Citizen

    Aye aye Philip Pillai.

  • Jackson

    It's the joke of the century if the by-election is not conducted. Possibly another 'own goal' by the ruling party?

  • Real reason

    The real reason for the AGC appeal might be that PM is ready to make an announcement on the HG by election after his return from Cambodia meeting and he does not want his announcement to appear like he is forced by the Court ruling.
     
    So AGC must appeal so as to delay open court hearing, all this cheap wayang because someone thinks we are really daft.

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  • Ethen Jin-Chew

    @ Steve Wu,
    Very well said, Steve.
    No one was clear minded and courageous enough in Singapore to question LKY when he put forward those arguement against the 3-month by election rule of the Constitution.
    Just what kind of our own experience of fair election and governance did we have back in 1965? The man obviously had his own political agenda.
    Honourable Justice Phillip Pillai has made a ruling of conscience, in the interest of the electorate and of our system of governance. Not to mention the upholding of our judiciary integrity.
    If we want our country to really become first world, this small step in allowing the independence of our Judiciary without interference by the AG is very critical. 

  • Ethen Jin-Chew

    @ Steve Wu,
    Very well said, Steve.
    When LKY put forward those arguement against the 3-month by election rule of the Constitution, just what kind of our own experience of fair election and governance did we have back in 1965? The man obviously had his own political agenda.
    Honourable Justice Phillip Pillai has made a ruling of conscience, in the interest of the electorate and of our system of governance. Not to mention the upholding of our judiciary integrity.
    If we want our country to really become first world, this small step in allowing the independence of our Judiciary without interference by the AG is very critical. 

  • Ethen Jin-Chew

    @ Steve Wu,
    Very well said, Steve
    Honourable Justice Phillip Pillai has made a ruling of conscience, in the interest of the electorate and of our system of governance. Not to mention the upholding of our judiciary integrity.
    If we want our country to really become first world, this small step in allowing the independence of our Judiciary without interference by the AG is very critical. 

  • Ethen Jin-Chew

    To TOC editor,
    Would appreciate it if you could improve on your system of response to comments to avoid multiple duplications.
    Thanks  

  • theonlinecitizen

    You spam, then blame us. Wah lau.

  • ‘Mat

    Shouldn't it be "bye bye Philip Pillai"?

  • He is PANIC!

    Someone is panic! He always think he is above the Laws!
    what two-way process? Try to con us again!?

  • Contitution expert

    That is why "Contitution Expert" is required to testify at court!

  • Mindless Interference

    Another case of mindless interference by the AG. The PM has again lost his credibility. This perpetual moron does not know the ground sentiments. Win the battle and lose the war. Stupidity knows no limits.

  • hounds

    Well, technically, the threshold for amendment of the constitution of Singapore is fairly easy to obtain, requiring only a 2/3 approval from the total sitting in our uni-cameral system

    This is further exacerbated by the  unequal weightage of votes due to the GRC system which will sway it in favour of the dominant political party.

    So our constitution does not really protect people as much as it says it should since fundamental rights can be easily abrogated due to the operation of the 2 above factors.

    That said, our government is also constrained by the constitution which means it does not have the parliamentary sovereignty it claims to have and is behaving as it has.

    Unfettered discretion to the executive has never been looked upon kindly in all common law regimes.

    Our Westminister system of government also bears some blame for being in "cahoots" with how our political sphere is. The separation of powers is not complete due to the requirement that the executive "ministers" are drawn from the legislature "members of parliament" 

    When this operates in a system where vote weightage is unequal as in the system of the GRC which has distorted the weightage, it inherently creates a structure is not democratic.

    Unchecked democracy only leads to authortarianism or totalitarism since it creates a "state of exceptionalism" which is controlled by a minority which may not act in the best interest of the majority ie the majority are held hostage/controlled by the minority

    In Singapore's case, it is imperative that the judiciary is insulated from political interference as it is the last bastion to check executive powers and to ensure that the executive does not exceed its powers and jurisdiction.
     

  • Heads I lose, Tails I Lose

    It's a no win situation for the ruling party. Hougang residents will forever support the WP.  As soon as  LTK appears during the campaign, there will be loud cheers and it's game over for the ruling party.

    The PM should call for an early election and put this matter to rest. By playing politics with the people,  he will aggravate his loss and be made to look like a real fool. Getting the AG to play court jester is foolery of the highest order.

  • Steve Wu

    @Ethen Jin-Chew
     
    Fortunately, the Supremacy provision remains intact.  There is hope that the People shall see a properly reconstituted Constitution, even if it  takes some time and it seems like an uphill task now.
     
    Article 52, S.I. 1963  No. 1493 (prior to Independence)
    Any law enacted by the Legislature after the coming into operation of this Constitution which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.
     
    Article 4, Constitution  – Supremacy of 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.
     
    The Legislature is NOT vested with the authority to make arbitrary amendments (only consistent ones). The only authority which may "wipe the slate clean" is a national referendum,  i.e. the People.

  • Dr Tan Tai Wei

    Seems of the same stuff as such previous cases? Here we have the AG seemingly showing disrespect for that judgement in wanting to thwart due process it allowed for Ravi be heard in open court, rather than do the normal thing of waiting for the due process to be completed before appealing if needed. The seeming presumptuousness and arrogance of the stance, impatiently confident that the judgement is wrong and must quickly be reversed and not allowed execution at all! Other possible similar past cases come to mind. When CBD restriction was first implemented, a judge decided it wasn't legal. Government appealed, but ordered that meanwhile the restrictions would continue! Did that judge remain long in office? District Judge Michael Khoo gave a case to JBJ against LKY. He was soon after removed, not due to that, of course. As LKY explained in Parliament, he lacked judicial sense not necessarily in that incident, quoting one or two others.  The Privy Council was removed as our final court of appeal, too soon after it ruled in JBJ's favour. But, of course, as Jaya argued in Parliament, government had wanted it removed even before, and it was only a coincidence that they acted only after that JBJ judgement.

  • GG

    Not sure what you expect the AGC to do. In their annual report card they do not want to see "must put in more effort". Up to the judiciary to do their job now.

  • Dr Tan Tai Wei

    GG, I'm sure we do not want the AG to work just for its "annual report card".

  • Mike Zeng

    @GG
    The judiciary meaning the Court of Appeal comprising CJ Chan and the same 2 other appeal judges? You must be kidding….enough said, otherwise I may kena sued.

  • Amazing

    Hope everyone in the public can attend the court session to see how unreasonable PAP is.

  • sidewinder

    They are scared stiff. With this kind of BG, how do we defend our country?
    What a useless bunch of overpaid ministers!

  • Pinky Lee

    Not unlike MY, the culture of impunity overrides everything else including justice for all……just to stay on in power and wealth forever never mind what the lesser mortals think or do.
    The cleaner petitioner is the least of lesser mortals!

  • Duh

    Times have changed – Singaporeans are now watching closely how this court proceedings go. The integrity and political independence of our legal system is put to the test here.

  • Lee Kim Chew

    Sorry. I don't understand the purpose of this excerpt. First, the story is very old, by new media standards. It first appeared online on Tuesday afternoon – April 2. It's April 4 today. 
    Secondly, where is the commentary? 
     
    TOC, work harder. You have been doing a good job. Don't slacken now.
     
     
     
     

  • LIONS

    honestly,whether the by-election is held earlier or later does not cause any imapct on costs or greater inconveniences as some argued as many public policy issues are pending.
     
    in fact,it owuld be more social-cost saving as well as economic ones if the HG by-election IS HELD EARLIER THAN LATER unless the PM is thinking seriously of postponing till near or during the next GE?
    rationally speaking,the earlier the by-election,the less hassle there eill be as could be seen by this 'court tussle',is it not?

  • DP

    Can someone enlighthen me. It is not the responsibility of the judiciary to protect our constitution from the executive. However in this instance the AG seems to be defending the executive, trying to stop the passage of justice. Well I believe the AG aspires to be the CJ. Well "in" in still not within

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  • GoonDoo

    If i'm reading the paraphrased ruling, Justice Pillai is merely ALLOWING the respondent for leave TO APPLY to court for a writ of mandamus & a declaration.. nothing more.  So don't read TOO MUCH into that.  The substantive hearing & decision on those applications have not yet been heard – the AGC is trying for it NOT to be heard.
    My bet is that if the matter does proceed for hearing, the court will decide it has no power to question the DISCRETION of the PM…  Our courts' track record on interpreting constitutional matters has been extremely conservative, to say the least….

  • Jackson

    I believe that not just WP voters but also PAP supporters want the by-election asap. By delaying it will only increase WP votes and decrease PAP votes. What an un-intelligent move by Government !

  • Peter Sellers

    Steve Wu, thank you for your enlightening posts.
     
    The Singapore Constitution, no doubt, needs to be substantially re-written, not only to address this anomaly but also to reinstate the many curbs on personal liberties (Part IV) that have been written into it over the years.  Hopefully we shall one day see the changes.
     
    Hats off to Justice Philip Pillay for a courageous ruling. Will it mean the end of a promising judicial career? No matter, the people will always remember his courage and independence in the face of the PAP juggernaut.

  • Reformasi

    Reading up on Prof Kevin Tan's account in the book "Evolution of a Revolution – Forty Years of Singapore Constitution" it was clear that the PAP government had with an overwhelming majority entrenched many provisions of state powers [for their convenience] by overturning many [restrictive] proposals of the Wee Chong Jin Commission. To quote Prof Tan, "Constitution-making was dictated by state and political imperatives rather than rule of law principles and democratic ideals."
     
    Perhaps for reasons of progress and stability then, as a new nation state, it was neccessary for "the government to control the governed", in producing a constitution that gave over-arching powers to the state. After a watershed election, the time is opportune to "oblige the state to control itself". I hope the judiciary and the legislature shall not deny the people the chance to advance in nation building and initiate a process of constitutional reform better attuned to the dynamics of Singapore today.

  • son of s

    This Attorney General seems to be everywhere. He is the conductor for capital cases urging  prosecution and trial for this person, preventing the pursuit of  the death sentence for another person. He decides on the clemency appeals to the President. Now he is fabricating the law so that the Prime Minister can avoid a by-election. He is the pit bull of this Regime. When his masters tell him to charge he charges.We the citizenry better beware and resist having a PAP pit bull in the heart and control center of the Law in Singapore.Otherwise it will be the end of the Rule of Law or the beginning of the Rule of Law , Singapore style.

  • son of s

    The PM does not  read the writing on the walls. Even the Myanmar military  junta have read and understood the sign of the times.

  • Peter Sellers

    So what happened to Gangasudhan's other ("cynical manipulation") article?

    The least TOC can do is to inform readers that the article has been withdrawn. We can't talk about transparency without being transparent ourselves.

  • anon

    Walter Woon must have an inkling of what he was in for and refused to allow his AG office to be a political tool.
     

  • RR

    Who's paying for all this?

  • Lye Khuen Way

    Am sure if TOC were to organize a collection for the legal expenses or troubles that may ensue, there will be many right-minded Singaporeans who would step forward. Good to know that there are still fair-minded and upright Judges…..

  • Alfretz

    AGC appeals against decision in by-election case. Why?

  • Nick

    because that's their job. AGC acts as the Government's solicitor. It's like asking why does my lawyer appeal for me? because he's my lawyer.

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