By Ghui –
I read about the High Court ruling against the application of Hougang resident Vellama Marie Muthu for a declaration that the Prime Minister does not have "unfettered discretion" in determining when to hold by-elections with some consternation. I am certainly no expert on Constitutional law but it would appear to me that the reasoning behind that decision was based more on semantics and word play than an actual analysis on the intention behind the Constitution.
The ruling would also appear to be in contrast to some experts' earlier views. Constitutional law professors whom Yahoo! Singapore previously spoke with agreed that interpretation of the phrase "shall be filled by election" necessarily indicates the mandatory nature of a by-election, in the event that a seat is vacated.
In the article entitled "High Court dismisses Hougang by-election case", Justice Pillai's ruling is explained as follows:
"Elaborating on his ruling, Pillai explained that the term "election" in Article 49 (1) in Part VI of Singapore's constitution carries two possible interpretations.
In the first, it could refer to an event, making the holding of a by-election mandatory. In the second, it could refer to the process of election, indicating only that the way in which the process of filling a vacated seat in parliament is by election.
The latter interpretation does not suggest that the Prime Minister must call for a by-election, wrote Pillai, who concluded from further reading of the rest of Part VI that it is this second meaning that should be taken.
Given this, Pillai ruled that the Parliamentary Elections Act "merely provides the mechanism to hold such an election (the by-election) should the Prime Minister decide to call one", instead of determining whether or not one should be held, much less when."
Article 49(1) of the Constitution clearly states that if a seat has become vacant for any reason other than dissolution of Parliament, the vacancy shall be filled by election.
As a lay person reading these provisions, it would be logical to assume that the word “election” would take on the meaning best understood by the average man on the street – i.e. that an election be called! It seems superfluous to then delve into a buried second meaning by seeking to define “election” as “the process of election”.
I appreciate that there may be legal nuances that I do not understand but surely the Constitution which enshrines the basic rights of all Singaporeans should be free from such complications as far as possible? Besides, where there is room for uncertainty, should we not be opting for the simpler and more straightforward solution so as not to muddy the waters further?
The constitution is a document that is of utmost importance to Singaporeans. I cannot stress this enough. As such, it is imperative that it is made “as easy to understand” as possible.
The results of an election are what give a government its legitimacy. Following this line of reasoning, if a seat in Parliament falls empty, surely it is an act of common sense that voters are permitted to vote for a new MP? After all, our MPs represent us and our interests in Parliament. Should we not have a right to choose who we want since the person we originally chose is no longer able to represent us? Why is there even a need to limit this right?
Singapore is a functioning democracy. The right to choose our government and how that process plays out should therefore be sacrosanct. The best way to protect this right would be to ensure that its application be uncomplicated. With all due respect to Justice Pillai, this ruling appears to encourage us to “read between the lines” as opposed to reading the Constitution “as is”.
Or perhaps there is a simpler solution to all of this. Article 46(2)(b) of the Constitution stipulates that an MP’s Parliamentary seat falls vacant if the MP is expelled from the party under whose banner he or she stood for election. Perhaps if an MP is permitted to retain his or her seat as an independent despite expulsion would solve this dicey problem altogether. This is certainly the case in many commonwealth countries such as the United Kingdom and Ireland.
I can only speak for the common man trying to make sense of this legal mumbo jumbo while at the same time trying to assert his rights in a democratic nation. I leave it up to legal minds, far finer than mine to determine the process. But surely, the answer lies in simplicity?