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By-election in Tanjong Pagar – A legal analysis

LKY 03By Subramaniam Thirumeni

I hope it is not too vulgar or insensitive to blog about this now.  I certainly hope the lynch mob will not turn on me. This is an issue about the law and so I am just wondering out aloud:

Is there a legal requirement to hold a by-election in a GRC where one of the seats has become vacant?  Should there be a by-election in Tanjong Pagar?

There has been a long tradition in Singapore of the state avoiding by-elections as much as they could.  The Anson by-election in 1981 kept the PAP nervy about by-elections for such a long time.  However, the application and eventual Court of Appeal decision in Vellama d/o Marie Muthu v AG (2013) had ensured that the PAP acted promptly in having by-elections in Hougang and Punggol East.  That case dealt with the situation involving the vacancy of a Single Member Constituency.  What is the legal position for GRCs?

This problem had arisen before when the MP for Bukit Batok passed away.  Several members of the PAP explained the reason why there was no need for a by-election as it was a GRC and there are other MPs in the group.

Let’s examine the law:

Article 49 of the Constitution of the Republic of Singapore
Filling of Vacancies
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.
(2) The Legislature may by law provide for —
(a) the vacating of a seat of a non-constituency Member in circumstances other than those specified in Article 46;
(b) the filling of vacancies of the seats of non-constituency Members where such vacancies are caused otherwise than by a dissolution of Parliament.

Therefore, if a seat is vacant and it is not because Parliament has been dissolved (i.e. this is not a general election) then the vacancy shall be filled by election.

The Constitution requires that the vacancy be filled by an election. Therefore, when an MP has passed away and there is a vacancy, a by-election must be held. As a result of the Vellama decision, this Constitutional provision is to be regarded as mandatory rather than discretionary.  The only discretion that the PM would have is on the timing of the by-election.

What is the manner in which the election is to be held? Article 49 states that the election will be in the manner provided by any law relating to Parliamentary elections.

There is a law relating to Parliamentary elections in Singapore. That is the Parliamentary Elections Act (cap 218). The relevant provision of the PEA is as follows:

Writ of election
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.
(2) Every such writ shall be in Form 1 in the First Schedule and shall specify the date or dates (referred to in this Act as the day of nomination) not being less than 5 days nor more than one month after the date of the writ and the place or places of nomination (referred to in this Act as the place of nomination).
(2A) In respect of any group representation constituency, no writ shall be issued under subsection (1) for an election to fill any vacancy unless all the Members for that constituency have vacated their seats in Parliament.

lee-kuan-yew-tanjong-pagar-grc-2yqmelkzo4p58gmq2j00zuSection 24 deals with the issuance of a Writ of Election. During a General Election or when a by-election is called, the President issues a Writ of Election. Section 24, Subsection 2A, states that no writ of election shall be issued for a GRC unless all MPs in that GRC have vacated their seats.

On a surface reading of s.24 of the PEA, one would get the impression that there is no necessity to have a by-election. But, isn’t this inconsistent with the Constitution?

Article 49 is clear that the vacancy ought to be filled by election. At most it merely makes allowance for the election to be held in accordance with a procedure prescribed for Parliamentary Elections. The PEA is a statute that prescribes the procedures for parliamentary elections. However, the PEA attempts to assert that no Writ of Election shall be issued in the case of a vacancy of a seat in a GRC. This is clearly inconsistent with the Constitution.

The Constitution does not allow Parliament the discretion to pass a law that would negate a by-election. It allows Parliament to pass laws that would prescribe procedures for the conduct of elections. The words in the Constitution are very clear: “in the manner provided by or under any law”. It does not say that Parliament is permitted to pass laws that prevent the filling of vacancies. It says that vacancies must be filled. The manner in which they are filled can be provided under the law. However, the PEA seeks to exclude a by-election altogether. By providing that the President shall not issue a Writ of Election, the PEA has effectively overridden the Constitutional provision that an election shall be held.

Hence, should s.24(2A) of the Parliamentary Elections Act not be unconstitutional?

Article 4 of the 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.

Of course, even if we take the view that the vacancy of a seat in a GRC has to be filled, the fact remains that the next General Elections could be called anytime within the next 12 months.  Thus, it doesn’t seem to be practical to call for a by-election.  There’s every likelihood that the General Elections will take place this year itself.

For good reason, the opposition parties have remained silent about the issue of the vacant seat in Tanjong Pagar.  In fact, if a by-election were to be held in Tanjong Pagar GRC right now, PAP will be likely to win by a big margin.  I guess nobody really wants to push their luck.