Exploring the Extent of Executive Discretion

~ By Jeannette Chong-Aruldoss ~

Part-time cleaner, Mdm Vellama d/o Marie Muthu is a Singapore citizen and resident voter of Hougang Single Member Constituency (SMC). 

On 15 February 2012, her Member of Parliament (MP) was expelled from his political party, which left his parliamentary seat vacant.  The next day, the Prime Minister said that there was no fixed time within which he must call for a by-election. He added that "there are many other issues on the national agenda right now" (here).

Unhappy at the prospect of being indefinitely without the service of an MP representing her vote, Mdm Vellama applied to the High Court on 2 March 2012 for remedy.

Asking to see the judge

Mdm Vellama’s High Court application is for a declaration that the Prime Minister does not have unrestrained discretion when deciding whether or not a by-election should be called in Hougang SMC, and a mandatory order requiring the Prime Minister to advise the President to call a by-election within three months or some other reasonable time determined by the court.

According to Rules of Court, Mdm Vellama would first need to obtain the Court’s “leave” (i.e. permission) before her application can be heard by the Judge and decided on the merits.  The purpose of this initial “leave” stage is to serve as a filter:

“… to be a means of filtering out groundless or hopeless cases at an early stage, and its aim is to prevent a wasteful use of judicial time and to protect public bodies from harassment (whether intentional or otherwise) that might arise from a need to delay implementing decisions, where the legality of such decisions is being challenged.” (Public Service Commission v Lai Swee Lin Linda [2001] 1 SLR(R) 133 at [23])

As the Attorney-General explained:

“Leave must first be obtained in judicial review proceedings so that cases which are misconceived or unarguable can be weeded out.” (Attorney General v Vellama D/O Marie Muthu Civil Appeal No. 35 of 2012)

Hopeless cases which do not deserve to be heard, should be stopped on its tracks at the door.

On 2 April 2012, a High Court Judge decided that Mdm Vellama’s application passed the initial filtering test.  Mdm Vallama was given leave for a substantive hearing and a Hearing Date of 16 April 2012 was given to her.

Appeal against judge’s decision to hear

On 4 April 2012, in a surprising move (at least to me it was), the Attorney-General filed an Appeal against the High Court Judge’s decision to grant leave to hear Mdm Vellama’s application.  This effectively translates to Attorney-General saying that Mdm Vallama’s application does not deserve to be heard and that the decision by the High Court Judge to hear her out, was wrong. The Attorney-General’s Appeal will be heard on 16 May 2012.

From anecdotal accounts, it seems that many Hougang constituents and Singaporeans (including me) share Mdm Vellama’s unhappiness with the Government’s position that it is not held to any particular time frame for announcing the Hougang by-election, or for that matter, any by-election when a parliamentary seat of an SMC becomes vacant.

History of by-elections

Mdm Vellama’s anxieties are not without basis.  There had been instances in the past, where parliamentary seats were vacated by the respective MPs due to death or disqualification, but where no by-elections were held:

(a)  In December 1983, the MP for Havelock constituency, Hon Sui Sen, passed away in office. His seat was thus vacated. No by-elections were held in the ward until the General Election in 1984, when the Havelock seat was erased from the electoral map.

(b)  In November 1986, the late JB Jeyaretnam’s seat in Anson was vacated after he was disqualified from holding a seat in Parliament. No by-elections were held and the seat remained vacant until the 1988 General Election, when the Anson seat was erased from the electoral map.

(c)  In December 1986, the Geylang West seat became vacant after its MP Teh Cheang Wan committed suicide. No by-elections were held until the 1988 General Election when the Geylang West seat was erased from the electoral map.

Academics have weighed in and Singaporeans are keen to know the Court’s opinion on the limits of Executive discretion in respect of SMC by-elections (here).

Why appeal?

Given the public interest in Mdm Vellama’s application, it is perplexing that the Attorney-General has decided to vigorously challenge the High Court’s decision to hear Mdm Vellama's application.  If the Attorney-General’s Appeal succeeds, Mdm Vellama’s case would be thrown out; which means that she, Hougang constituents and Singaporeans will be denied of the Court’s opinion on the question whether the Prime Minister’s discretion is or is not limited to a definite time-frame for calling by-elections.

If Mdm Vellama’s application is indeed "legally flawed" as the Attorney-General has argued, then it is doomed; and the Court will eventually dismiss it after it has been heard.  So what's the harm in letting Mdm Vellama have her day in Court and to let justice be seen to be done?

Legal costs?

In court proceedings, when a party “wins”, the winning party can ask the court to order the losing party to pay costs. If the Attorney-General’s Appeal succeeds, would the Attorney-General ask the Court to order Mdm Vellama to pay costs?  I hope not.

Every Singapore citizen in all other constituencies has his own elected MP to serve him.  Mdm Vellama has turned to the Court for help because she fears she would not be having what every Singaporean in all other constituencies has.  It would be disappointing enough if the Attorney-General "wins" their Appeal, for that would mean that her application is thrown out.  To be made to pay the Attorney-General's legal costs for asking the Court for help, would be a disastrous result.      

Role of attorney-general

We know that the Attorney-General is the Government’s legal adviser (here).  If the Attorney-General serves the Executive, then do the interests of the Executive coincide, or conflict, with the interests of the public (i.e. citizens) in respect of the legal questions posed by Mdm Vellama’s application? 

What if the Executive one day decides to abolish SMCs altogether?  Or if supposing Executive thinks it is better to hold elections once in 10 years in the interest of political stability and to avoid the expense and distraction of holding general elections once every 4 or 5 years? 

If (hypothetically) the Executive wants to amend the Constitution in a manner which serves the political interests of the ruling party at the expense of civil liberties, and if the ruling party has the requisite two-thirds majority in Parliament to pass such amending legislation, who will defend the citizens’ rights from being encroached upon?

What will be the role of the Attorney-General in such a hypothetical scenario?  As the Government’s legal adviser, the Attorney-General would presumably defend the Government’s position with all its best efforts.

Workers’ Party’s complaint in GE 1997

In the aftermath of the 1997 General Elections, the Workers' Party complained to the police that PAP leaders (Prime Minister Mr Goh Chok Tong, Deputy Prime Minister Dr Tony Tan and Deputy Prime Minister Brigadier-General (NS) Lee Hsien Loong) had been inside a Cheng San GRC polling station on Polling Day, when none of them were candidates for Cheng San GRC (here).

Screenshot from: http://www.singapore-elections.com/parl-1997-ge/cheng-san-grc.html

The Workers' Party cited two sections of the Parliamentary Elections Act:

Section 82(1)(d):

"No person shall wait outside any polling station on polling day, except for the purpose of gaining entry to the polling station to cast his vote". 

Section 82(1)(e):

"No person shall loiter in any street or public place within a radius of 200 metres of any polling station on polling day."

However, the Attorney-General stated that the PAP leaders had not broken the law.  

Pointing to the use of the word “outside” in Section 82(1)(d), the Attorney-General explained (here):

“Plainly, persons found waiting inside the polling stations do not come within the ambit of this section. …. Only those who wait outside the polling station commit an offence under this section unless they are waiting to enter the polling station to cast their votes.”

As for Section 82(1)(e), the Attorney-General pointed to the use of the word “within” and explained (here):

“The relevant question is whether any person who is inside a polling station can be said to be "within a radius of 200 metres of any polling station". …Plainly, a person inside a polling station cannot be said to be within a radius of 200 metres of a polling station.”

If at that time, Singapore had an independent election body overseeing the election procedures, I think the Workers’ Party would probably have lodged their complaint to such a body instead of lodging their complaint to the police as they did.  I wonder how such an independent election body would have dealt with the Workers’ Party’s complaint.

Amending the Constitution

As we know, the provisions of the Constitution may be amended by the votes of two-thirds of the total number of elected MPs, which works out to 58 out of the current 87 parliamentary seats.  This has been done numerous times in the past. Since 1965 to date, there have been 37 acts of parliament to amend the Singapore Constitution.

List of legislation amending the Constitution

More importantly, Singapore’s electoral system has been amended at least four times since 1984, each of these amendments coming into effect shortly before general elections, as the following table illustrates: (Page 67, An Introduction to Singapore’s Constitution (2005) Kevin YL Tan)

I imagine the short lead time between the effective date of the electoral changes and the date of elections would have made it difficult for opposition parties to react and to prepare themselves for elections.     

Notably, Singapore has never had an independent body overseeing election procedures and the drawing of constituency boundaries.  Our Election Department has always been under the Prime Minister's office.  Criticism by opposition parties of an unlevel political playing field cannot be independently evaluated. 

Balancing the powers

Unless there are sufficient opposition MPs in Parliament (at least 29) to deny the ruling party their two-thirds majority, citizens have only two defenders left to protect their civil rights: the Judiciary and Civil Society. 

The effectiveness of the Judiciary in checking the Executive will be curtailed whenever the scope of judicial review of executive decisions are being reduced or eliminated (e.g. section 8B(2) of the Internal Security Act). 

The effectiveness of Civil Society in speaking out for the protection of fundamental liberties will be curtailed so long as freedom of speech is circumscribed by legislation mandating the requirement to obtain a licence to speak publicly, assembly or gather in public (Public Order Act), restricting the formation of societies (Societies Act), vigilant, vigorous enforcement of defamation laws by political appointment holders (here), and so forth.

We have heard the old adage: Absolute power corrupts absolutely.  All power must have limits.  The exercise of Executive powers, as with any other kind of powers, cannot be unfettered. 

Democracy is a flawed system, no doubt; but this imperfect system respects the collective voting might of ordinary citizens and makes everyone equal.  Whether rich, influential, poor or obscure – each citizen has one vote.   

In functioning democracies, Executive powers are checked and balanced by: 

• Clearly defined constitutional guarantees of fundamental liberties
• presence of sufficient numbers of opposition MPs in Parliament
• an independent Judiciary with effective, sufficient powers of judicial review over Executive decisions
• a Civil Society which is not overly hindered by laws restricting freedom of speech and public assembly
• an independent elections commission to oversee election procedures

As of now, are all these safeguards securely in place in our socio-political landscape?

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